Vergilis,Stenger,RobertsDavis&Diamond (4).,.
37. At each meeting the Town Engineer noted tat Cranberry needed the ACOE permit
and approval prior to final approval of the plat; Cran~erry provided the status of its ACOE
application at each of the meetings.
38. Cranberry's Engineers, Kellard Engineering, responded to the Town Engineer's
review letters, noted the ACOE permit requirements a~d gave the status of the ACOE permit.
(Town Return Exhibit "J," Kellard Engineering Response to Town Engineer Review Letters).
39. Cranberry reported that the ACOE issued a ~ublic Notice on October 1, 2007 and the
public comment period ended on October 30, 2007. (Town Return Exhibit "K," ACOE Public
Notice Number NAN-2007-01130-WCA). ICI
40. My associates and I reviewed, commented on and approved hundreds of pages of
documents, including the proposed Home Owners' Association, Declaration of Covenants and
Restrictions, easements, deeds and other legal documen~s prepared by Cranberry's attorneys.
41. The Town Planner reviewed, commented ooh and approved wetland mitigation plans,
~I
landscape plans, lighting plans, engineering drawin~s and other documents submitted by
Cranberry.
42. The Town's representatives and Cranberry's professionals accomplished much in
their meetings and substantial changes were made as a ~hesult of this review process.
43. During these meetings all of the parties acknowledged that the ALOE permit and
approvals were required before the Chairman could sign the final plat. At no time was it ever
mentioned that the ACOE permit could not be obtai~ed by December 7, 2007 or that it was
~I
required only for "commencement of construction activities."
44. The approvals required by the Dutchess~' County Department of Health and the
Dutchess County Department of Public Works were also discussed at great length during the
8
compliance review meetings. Health Department
(Town Return Exhibit "A.1").
45. It was clearly understood by all attendees
conducted based on a deadline of December 7, 2007.
Chairman Asked to Si
46. A final compliance review meeting was sch
+w
47. On December 4, 2007, Richard O'Rourke,
time, informed me that the ACOE permit had not issuf
ACOE permit was only necessary for construction ac
~.
made about the other approvals required as set forth
page 2 paragraph A.S, page 2 paragraph A.8 and page 4
.. 48. On December 4, 2007, James Horan, Esq.
the ALOE and was informed that the permit had not is
and Wildlife Service regarding Indiana Bat habitat on
"r` Horan, Esq. submitted herewith).
49. On December 5, 2007, the Town Engine
indicated that ACOE approval was still pending.
Review Letter dated December 5, 2007).
50. On December 6, 2007, a meeting was hf
Board's professionals and Cranberry's professionals
Conditional Approval with Cranberry to determine
the Resolution.
9
11 was obtained on November 30, 2007.
the compliance review process was
for December 6, 2007.
isq., attorney for Cranberry, for the first
and it was Cranberry's position that the
vities to commence. No comment was
the November 8, 2006 Paggi letter, at
B.35.
my office contacted James Cannon of
because of concerns of the US Fish
Property. (See Affirmation of James P.
prepared his final review memo which
Return Exhibit L, Town Engineer
at the Town Hall between the Planning
go over, line by line, the Resolution of
it had complied with each condition of
51. Cranberry had complied with all of the
from the Army Corps of Engineers for the four
letter of November 8, 2006.
52. At the December 6, 2006 meeting,
in detail the nature of the Indiana Bat problem.
53. After hearing the nature of the Indiana
~'` determined that, if Cranberry could provide a letter
had complied with all of the requirements for the
ins, except the issuance of approvals
listed in the Town Engineer's review
representative Chris Munch explained
issue, the Planning Board consultants
the ACOE confirming that_ Cranberry
,e of an Individual ACOE Permit and
that the issuance of such Permit would be forthcoming as a ministerial act in the due course of
~ '.
business without change to the final plat, the conditions of the Resolution of Conditional
I
Approval would be met.
54. Also on December 6, 2006, after meeting w~th Cranberry's representatives, the Town
~ Attorney, the Town Engineer, the Town Planner, the Panning Board Secretary, and the Zoning
Administrator met with the Chairman of the Planning oard to discuss Cranberry's compliance
~ with the conditions set forth in the Resolution of Conditional Approval and he was briefed on the
results of the meeting with Cranberry.
55. During the morning of December 7, 2007, Cranberry advised that it had obtained a
~' letter from ACOE and a meeting was convened in the fternoon of that day to review the letter.
Present at the meeting were the then Chairman of the lanning Board, Robert Valdati, the Town
Supervisor, the Town Attorney, the Town Engineer, the Town Planner, the Planning Board
+w
Secretary, Cranberry's Attorney and Cranberry's Engi er.
56. At this meeting, Cranberry presented a l~tter from the ACOE dated December 7,
2007; significantly, the letter did not indicate that a pjermit would issue, but merely stated that
10
I
*r
"[a]s a result of this commitment, the Corps of Engi~
making process." (Town Return Exhibit M, Letter of
57. The December 7, 2007 letter also clearly
s will continue to conclude our decision
E dated December 7, 2007).
that before the Permit could be issued,
the application must be reviewed for its potential impact on threatened or endangered species.
~r
~-~
58. After reviewing the letter, a conference call was initiated with James Cannon of the
ACOE. During the call, the Town Engineer asked 1~Ir. Cannon if the ACOE could require
changes to the location of roads, houses or other items shown on the final subdivision plat as a
condition of its Wetlands Disturbance Permit and Mr. (Cannon indicated that such a possibility
existed.
59. Richard O'Rourke argued on behalf of ~
any event, Cranberry complied with the Resolu
Resolution of Conditional Approval only required
activities could take place. Again, Mr. O'Rourke i
in the Paggi letter of November 8, 2006.
60. I advised the Chairman of the Planning
that the letter was sufficient and in
of Conditional Approval because the
ACOE permit issue before construction
the other three requirements set forth
that the letter from the ACOE was not
satisfactory and I further advised that the plat should ~ot be signed because Mr. Cannon of the
ACOE indicated that there was a potential that the AC~OE could require the relocation of roads,
utilities or other necessary subdivision infrastructure Iwhich would necessitate changes in the
final plat. The Town Engineer and the Town Planner oth concurred with my recommendation
that the Chairman should not sign the plat.
61. Based on the recommendations of the Pl~nning Board consultants, the Chairman
determined that the conditions of the Conditional App~oval had not been met and that he could
not sign the final plats presented by Cranberry.
11
ar
,r.
62. Under Town Law § 276, if the conditions o the Resolution of Conditional Approval
have been met, the Chairman must sign a Final Plat tha conforms to the Resolution, conversely,
if the conditions have not been met, the Chairman shat not sign the Plat. The Chairman lacks
discretion to sign a plat if the conditions of the Resol tion of Conditional Approval have not
been met.
63. It is respectfully submitted that the Res lution of Conditional Approval clearly
incorporates by reference all of the conditions of the To n Engineer's review letter of November
8, 2006, and as such, ACOE approvals are required or Road Crossings, Wetland Mitigation
Plans, Wetland Restoration Plans, Wild Life Crossings nd the aluminum, arch-type box culvert,
before the Chairman is permitted, much less required, t sign the plat.
64. I respectfully submit that the determinatio by the Chairman of the Planning Board
that Cranberry had not satisfied the conditions in the re olution was reasonable and supported by
substantial evidence. The ACOE permit was not issue and the December 7, 2007 ACOE letter
provided no firm commitment for the issuance of such permit.
65. I further respectfully submit that this Co rt should not mandate that Cranberry's
Subdivision Plat be signed without knowing the con itions of the ACOE permit which could
require substantial alteration of the Subdivision Plat.
66. No previous application for the relief herei prayed for has been made.
12
~.
WHEREFORE, your affiant respectfully asks
award of attorneys fees, costs and disbursements and
just and proper in the circumstances.
an order dismissing the Petition, the
other and further relief that may be
ALBERT P ROBERTS, Esq.
Vergilis, St nger, Roberts, & Davis, LLP
1136 Route 9
Wappinger Falls, New York 12590
(845) 298- 000
13
DATED: Wappingers Falls, NY
February 27, 2008
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER ~
Index No. 306/2008
CRANBERRY HILLS, LLC, ENVIRONMENTAL
Petitioner, ~ CLAIMS PART
For a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules,
AFFIRMATION IN
- a g a i n s t- ~ SUPPORT OF
~- MOTION TO
THE PLANNING BOARD of the TO of DISMISS
WAPPINGER, and the CHAIRMAN of the
PLANNING BOARD of the TO of
WAPPINGER,
~"' Respondent
STATE OF NEW YORK )
~ COUNTY OF DUTCHESS )
Robert L. Valdati, being duly sworn, deposes and says:
1. I am a resident of the Town of Wappinger, utchess County, New York.
~ 2. On June 25, 2007, the Town Board of the Town of Wappinger (hereinafter the
"Town Board") appointed me as Member of the Town
the "Planning Board").
3. On November 13, 2007, the Town Boy
Chairman of the Town of Wappinger Planning Board
~„ Chairman through December 31, 2007.
4. I make this affidavit in support of the Rey
point of law for failing to state a cause of action.
O:\W appinger\Litigation\Cranberry HiIIs,LLC\Valdati Affidavit vl.doc
Wappinger Planning Board (hereinafter
appointed me to fill the position of
the balance of 2007 and I continued as
' motion to dismiss the petition in
5. Prior to my appointment to the Town of ~JJappinger Planning Board, I was duly
elected as the Councilman for the First Ward and ser ed on the Town Board in that capacity
from January 1, 1987 through December 31, 2006.
6. The Cranberry Hills, LLC (hereinafter "Cra berry") property contains approximately
322 acres and is one of the largest undeveloped parc Is in the Town of Wappinger and the
development of this property has a long history going b ck to the late 1970's.
7. Nearly half of the Cranberry property is de ignated as wetlands by either the Army
Corps of Engineers (hereinafter "ACOE"), New York S ate DEC or the Town of Wappinger, and
many Town residents expressed concerns to the T n Board about its development. The
property also contains areas of steep slopes and other a vironmentally sensitive areas.
8. In 2002, I was one of the proponents of Lo al Law No. 14 of 2002 which authorized
the Cranberry property to be developed as a Conservati n Subdivision pursuant to §240-19(B) of
the Town of Wappinger Zoning Code. As a Town Boa d Member, I voted in favor of the Local
Law authorizing the Conservation Subdivision because I felt it was the most appropriate way for
the property to be developed considering the environm ntally sensitive site conditions.
9. In 2002 when Local Law No. 14 was dopted, I was advised by the Town's
i
consultants and understood that in order for this pro~ect to be developed Cranberry required
wetland permits from the New York State DEC, the A OE and the Town of Wappinger.
10. I was not a Member of the Planning B and when it adopted the Resolution of
Conditional Subdivision Approval on December 12, 2 06, as I was not appointed until June 25,
2007.
1 I. On December 6, 2007, I met with the Tow Attorney, the Town Engineer, the Town
Planner, the Planning Board Secretary, and the Zon ng Administrator to discuss Cranberry's
2
compliance with the conditions set forth in the Resole
I was advised that Cranberry had not received a Wet
but had satisfied all other conditions of the Resolute
advised that the Town Engineer would accept a letter
issued.
12. The Town Engineer and the Town Planner
review letter dated November 8, 2006 was
Conditional Approval and I then reviewed the letter
which are required from ACOE:
a) On page 2 under the heading "A. Wetly
section 4 for certain "construction actin
b) At paragraph A5, the Wetland Mitigate
ACOE review and approval.
c) At paragraph A8, the proposed Wild L
and approval.
d) Additionally, at page 4 paragraph B35
the aluminum, arch type box culvert is
ACOE. (Town Return, Exhibit G).
13. The Town Engineer and the Town
ACOE Permit a condition precedent for the si
Resolution of Conditional Approval.
14. On the afternoon of December 7, 2007, I
its attorney Mr. Richard O'Rourke, Cranberry's eng
were present on December 6, 2007. At this meeting, C
dated December 7, 2007 which did not indicate that a
a result of this commitment, the Corps of Engineer
making process." (Town Return, Exhibit M).
3
n of Conditional Approval. At that time
~s Disturbance Permit from the ACOE,
of Conditional Approval. I was further
m ACOE stating that a permit would be
to me that the Town Engineer's
by reference into the Resolution of
them. The letter lists four approvals
s", ACOE approval is required at sub-
s".
and Restoration Plans are subject to
Crossings are subject to ACOE review
the heading "Grading and Drainage"
;t to review and approval of the
told me that they intended to make the
of the Chairman when they drafted the
d another meeting with Cranberry,
and the Town representatives that
y presented a letter from the ACOE
would issue, but merely stated "As
will continue to conclude our decision
wr
i
I
15. After reviewing the letter, a conference call as initiated with James Cannon of the
~.
ACOE. During the call, the Town Engineer asked r. Cannon if the ACOE could require
changes to the location of roads, houses or other items hown on the final subdivision plat as a
,r,, condition of its Wetlands Disturbance Permit and Mr. ~annon indicated that such a possibility
existed.
16. Richard O'Rourke argued on behalf of i Cranberry that it complied with the
'~''` Resolution of Conditional Approval because the Re olution of Conditional Approval only
required the ACOE permit issue before construction acti ities could take place.
17. Based on the conference call with Mr. Cann nand after considering the arguments of
w
Cranberry and the recommendations of the Town Eng neer, the Town Attorney and the Town
Planner, I determined that an ACOE permit, or a satisf tory letter from the ACOE that a permit
would issue, was a condition that had to be satisfied bef re I could sign the plat.
18. I further determined that the December 2007 letter from the ACOE was not
satisfactory for meeting the conditions listed in paragra h 12. (Town Return, Exhibit M)
~, 19. After considering all of the evidence and r commendations before me, I determined
that Cranberry had not met the conditions of the Resol tion of Conditional Approval; therefore I
i
could not sign the final plat.
• 20. On December 7, 2007, I informed Cranbe that I could not sign the plat.
21. Had Cranberry demonstrated that it had ~omplied with Resolution of Conditional
Approval I was ready, willing and able to sign the final subdivision plats presented by Cranberry;
however, I was unable to sign because the conditions ere not met.
22. I recognize that had Cranberry met all iiof the conditions of the Resolution of
Conditional Approval, I was mandated by Town Law §276 to sign the plat.
4
rr•
23. Local Law No. 17 of the Year 2007, Rescinc
Authorization to Planning Board to Permit a Conserv
Cranberry Hills, LLC played no part in my decision.
24. I respectfully submit that my interpretal
Approval was reasonable in the context of its expres
Town Engineer's review letter of November 8, 2006 v
the statements of the Town Planner and the Town Engir
25. I respectfully submit that this Court should ~
the Planning Board, that the letter from the ACOE su
conditions imposed by the Resolution of Condition
rationale, based on substantial evidence and was in no v
WHEREFORE, your deponent respectfully asl
award of attorneys fees, costs and disbursements and
just and proper.
DATED: Wappingers Falls, NY
February 23, 2008
Local Law No. 14 of the Year 2002,
~ Subdivision for Lands Owned by
~n of the Resolution of Conditional
d terms, read in conjunction with the
ich was incorporated by reference, and
~r as to the intent of the Resolution.
fer to my judgment, as the Chairman of
nitted by Cranberry did not satisfy the
Approval because my decision was
y arbitrary or capricious.
for an order dismissing the Petition, the
Bch other and further relief that may be
ROBERT IL. VALDATI
~.
+~r
Sworn to before me this
day of February, 2008.
Notary Public
5
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
rr
wr
~r
CRANBERRY HILLS, LLC, ~
Petitioner,
For a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules,
-against - ~,
~i
THE PLANNING BOARD of the TO N of
WAPPINGER, and the CHAIRMAN of the
PLANNING BOARD of the TO of
WAPPINGER, j
Respondent
STATE OF NE W YORK )
ss..
COUNTY OF WESTCHESTER )
DAVID H. STOLMAN, being duly sworn, deposes anc
I. I am President of Frederick P. Clark Ass
Wappinger. I have worked with Frederick P. Clark A~
land use planner. I am also a member of the American
2. I am fully familiar with the facts and ci
submit this affidavit in support of the Respondent's me
3. As a principal of Frederick P. Clark Assoc
act as planning consultant to the Town of Wapping
above-named Respondents.
4. As planning consultant to the Town of Wa
advising the Planning Board with respect to complia
says:
Index No. 306/2008
ENVIRONMENTAL
CLAIMS PART
AFFIDAVIT IN
SUPPORT OF
MOTION TO
DISMISS
ates, Inc., the planner to the Town of
~iates, Inc. since 1977 as a professional
stitute of Certified Planners.
tmstances of the present matter and I
~n to dismiss the Petition.
es, Inc., one of my primary duties is to
Planning Board and its Chairman, the
ger Planning Board, my duties include
with the State Environmental Quality
Review Act ("SEQRA"), the Town of Wappinger
County regulations, and other New York State and FE
ping and subdivision codes, Dutchess
•al laws and regulations as they apply in
the context of the subdivision review process.
•
5. A large part of my duties as Town Planner ~s to advise the Planning Board as to the
Federal, State and Town of Wappinger regulations $•egarding wetlands and the permitting
processes for working in and around wetlands. This wad very important in this case because the
property of Cranberry Hills, LLC (hereinafter "Cranberr~") contains large areas of wetlands.
6. The property which is the subject of this application consists of 322 acres of which
approximately 70 acres (24% of the site) are wetland regulated by the Town and the Army
Corps of Engineers (hereinafter "ACOE"), and approxi ately 64 acres (20% of the site) consist
of wetlands regulated by the New York State Dep ent of Environmental Conservation
(hereinafter "DEC"). The site also contains approxima ely 23 acres (8% of the site) with slopes
between 15% and 25%, and 9.5 acres (3% of the site with slopes exceeding 25%. (See Town
Return Exhibit A-1, Construction Plans "Cranberry Hil s," Sheet 1-A Final Subdivision Plan; see
also Town Return Exhibit C, Resolution of Conditional~Approval at 5-6).
7. The proposed subdivision would have
a disturbance of approximately 116
acres.
8. In order to develop the Cranberry Hills
buffer areas were to be disturbed: 0.71 acres of AC
vision, certain wetlands and wetland
regulated wetlands, 7.8 acres of Town
regulated wetland buffer, 0.2 acres of DEC regulated
wetland buffer. (See Town Return Exhibit C,
2
and 2.7 acres of DEC regulated
of Conditional Approval at 6).
9. Because of the numerous environmental
Cranberry requested that the
Town Board grant the Planning Board the authority to review its subdivision application as a
Conservation (Cluster) Subdivision pursuant to §240-1~(B) of the Town of Wappinger Zoning
Code.
10. Such authority was granted when the Tow Board adopted Local Law No. 14 of
2002 on October 15, 2002. (Town Return Exhibit D, Lo al Law No. 14 of 2002).
11. After the adoption of Local Law No. 14', of 2002, the Planning Board granted
Conditional Preliminary Subdivision Approval on Octo er 21, 2002. (See Town Return Exhibit
C, Resolution of Conditional Approval at 8).
12. Almost four years later, Cranberry submitte
approval on July 10, 2006. The submission contained
drawings, architectural plans, landscape plans, wetlz
associated documents. (See Town Return, Exhibit C, F
for a complete listing of the submissions made by Cran
13. At the time these submissions were made
engineer to the Town of Wappinger. Mr. Paggi's
responsibility of reviewing the extensive subs
Wappinger Zoning Code, the Town of Wappinger
2002, as well as the rules and regulations of
agencies.
14. Because of the enormity of the subm
~- believe by Cranberry's representatives that the
3
an application for final subdivision plat
proximately 110 sheets of engineering
1 maps, wetland mitigation plans and
solution of Conditional Approval at 2-3
Joseph E. Paggi, Jr. was the principal
;e and my office were charged with the
n for compliance with the Town of
vision Regulations, Local Law No. 14 of
Federal, State and County regulatory
I, along with Mr. Paggi, had been led to
ina Board and its consultants would be
+~r
given as much time as reasonably needed to review the
compliance with the above noted regulations. I cle
Cranberry's submission would take more than the 62 d.
must be remembered that it took Cranberry's engineer
to prepare these plans for final submission.
15. To my utter shock and disbelief, Cranberr}
Subdivision Approval on October 12, 2006. (Town
Letter).
ubmission for technical and substantive
ly understood that a proper review of
s required by Town Law § 276(6)(b). It
and other consultants almost four years
attorneys served a Demand for Default
tturn Exhibit E, Demand for Default
16. The Planning Board and its consultants vie ed the Demand for Default Approval as
a rescission by Cranberry of the extension of time to re iew the application for Final Subdivision
Plat Approval. Accordingly, the Planning Board and its consultants determined to conclude their
review of the application and issue a decision on the fnal plat within 62 days of the service of
the demand, that is, by December 12, 2006. (See Town I eturn Exhibit F, Minutes of the October
16, 2006 Planning Board Meeting at 31-32).
17. At the October 16, 2006 Planning Board meting, Cranberry's attorneys stated to the
Planning Board that they would not pursue the default ~pproval if the Planning Board adopted a
Resolution of Conditional Final Subdivision Approva~ prior to the expiration of the statute of
limitations to compel the Town Clerk to issue a certi icate of default approval. (Town Return
Exhibit F, Minutes of Planning Board Meeting, Octobe 16, 2006 at 31-33).
18. At the October 16, 2006 meeting, the Planning Board authorized me to prepare a
draft Resolution of Conditional Approval for the Find Subdivision Plat, which is part of my
regular duties as the Town Planner. (Town Return Exhibit F, Minutes of Planning Board
Meeting, October 16, 2006 at 37).
4
~.
19. After the October 16, 2006 meeting,
Planning Board and its consultants
continued their review of Cranberry's maps, plans and d~cuments and submitted their reviews to
~-
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.~r
the Planning Board and to Cranberry. ~
20. The review letter of the Town Engineer dat November 8, 2006 is of great moment
to this proceeding. (Town Return, Exhibit G, Town E gineer's Review Letter dated November
8, 2006).
21. To assist in the review process, my office reated a first draft of the Resolution of
Conditional Approval of the Final Subdivision Plat and circulated the draft to the other Planning
Board consultants and to Cranberry's attorneys, to Cranberry's engineers and to Cranberry's
other consultants.
22. Comments of the parties were received,
second and third drafts were created to
incorporate the comments received from the Planning
Cranberry's representatives.
23. In drafting resolutions of approval for sut
the following language as a condition of approval:
The Applicant shall revise the plans to addr
Town Engineer's most recent letter to the Ply
the Town Engineer.
24. I incorporate the Town Engineer's most r~
setting it forth at length in the resolution, to make s~
's other consultants as well as from
ivision plats, it is my practice to include
all comments contained in the
n~ Board, to the satisfaction of
review letter by reference, rather than
that none of the comments of the Town
Engineer are missed.
25. The final draft of the Resolution of
Final Approval included the date of
the Town Engineer's review letter, November 8, 2006,
5
for greater specificity.
..
26. Cranberry reviewed the early drafts of the Resolution and had an opportunity to vet
them prior to the Special Meeting of the Planning Board scheduled for adoption of the
Resolution.
27. At the December 12, 2006 special meeting of the Planning Board, I reviewed line by
line, in its entirety, the draft of the resolution that I prepared based on the comments received, in
the presence of Cranberry's attorneys and engineers; appropriate modifications to the resolution
were agreed upon and approved by both the Planning Board and Cranberry, and the resolution,
as modified, was adopted on December 12, 2006. (Town Return, Exhibit H, Minutes of Special
Meeting of Planning Board dated December 12, 2006).
28. At the conclusion of the December 12, 2006 meeting, Cranberry's attorneys thanked
the Planning Board for their hard work. (Town Return, Exhibit H, Minutes of Special Meeting
of Planning Board dated December 12, 2006 at 29).
Post-Approval Review
29. Thereafter, Cranberry's engineers, attorneys and other consultants set about to fulfill
the various conditions contained in the Resolution of Conditional Final Approval. Because oft e
extensive list of conditions, progress review meetings were scheduled at attorney Roberts' office
for the sole purpose of reviewing the numerous submissions and documents required by the
~ Resolution of Conditional Final Approval. The meetings were held on the following dates in
2007: May 8, May 29, September 28, October 30, October 31, November 8 and November 14.
~, 30. On other occasions, my staff met with Cranberry's wetlands consultants, Evans
Associates Environmental Consulting, Inc., to review plans for wetlands crossings, wetland
disturbances, wildlife crossings and wetland mitigation.
6
31. Town Law § 276(7)(c) provides that "[c]onditional approval of the final plat shall
expire within one hundred eighty days after the resolution granting such approval unless all
requirements stated in such resolution have been certified as completed." Two additional 90-day
extensions are permitted. Accordingly, all parties understood that all conditions had to be
fulfilled and certified as completed by the Chairman of the Planning Board on or before
December 7, 2007.
32. The requirement to obtain the ACOE approval is clearly set forth in the Town
Engineer's review letter of November 8, 2006, which was incorporated by reference into the
Resolution of Conditional Final Approval.
33. I respectfully submit to the Court that at various progress review meetings in the
summer and fall of 2007, the status of the ACOE permit was discussed and Cranberry's
representatives assured that the ACOE permit would be issued before the December 7, 2007
deadline.
34. Cranberry never asserted that ALOE approval was not required for the Chairman's
~ signature until it was clear that Cranberry would not receive the ACOE permit before December
7, 2007.
35. The ACOE was not in the position to issue the requested permit, as is obvious from
the ACOE letter of December 7, 2007, which states: "As a result of this commitment, the Corps
of Engineers will continue to conclude our decision making progress." (Town Return, Exhibit
M, ACOE Letter dated December 7, 2007, emphasis added).
36. It is ironic that having demanded a default approval, thereby shortening the review
and approval process, Cranberry could not fulfill the requirements of the Resolution of
Conditional Final Subdivision Plat Approval within the statutory time period.
7
37. Cranberry was unable to obtain the required ACOE permit by December 7, 2007 and,
accordingly, the Resolution of Conditional Final Subdivision Approval expired pursuant to Town
Law § 276(7)(c).
38. I respectfully submit that the sole question before this Court is whether the petitioner,
Cranberry Hills, LLC, fulfilled all of the conditions of approval prior to the expiration of the
Resolution.
39. The US Fish and Wildlife Service letter of December 21, 2007 confirms that the
ACOE is "currently reviewing an application" for wetlands impacts, and that before the ACOE
can act, it must consult with the Service.
40. The Fish and Wildlife Service recommended that the "Corps not issue any permits
w
until sufficient information is gathered to complete consultation." To complete their
consultation, the Fish and Wildlife Service requires "mist-netting between May 15 and August
15...." (Town Return Exhibit N, Letter of US Fish and Wildlife Service dated December 21,
2007).
41. Based on the foregoing, the earliest that the ACOE could issue a permit would be
between five and eight months after December 7, 2007, the expiration date of the December 12,
2006 Resolution of Conditional Final Subdivision Approval.
42. I was present at a meeting at the Wappinger Town Hall on December 7, 2007, when a
telephone call was made to James Cannon of the Army Corps of Engineers to clarify the
ACOE's position stated in its letter of the same date. Mr. Cannon stated that he could not
guarantee that a permit would issue, and he also stated in no uncertain terms that the ACOE
could require changes to the subdivision and the final subdivision plat as a condition of the
issuance of a permit, should one issue.
S
43. In other words, it is uncertain as of this date as to whether the plan submitted for final
approval by Cranberry will need to be altered to comply with a future ACOE permit.
44. Based on the foregoing, the Town Engineer, the Town Attorney and I advised the
Chairman of the Planning Board, Robert Valdati, that Cranberry had not fulfilled all of the
conditions of the Resolution of Conditional Final Approval and, accordingly, the Chairman was
not authorized by Town Law § 267(7)(c) to sign the plat.
WHEREFORE, your deponent respectfully asks for an order dismissing the Petition, the
award of attorneys fees, costs and disbursements and such other and further relief that may be
just and proper under the facts and circumstances of this case.
DATED: Rye, New York
February 26, 2008
DAVID H. STOLMAN
Sworn to before me this
26th day of February, 2008.
Notary Public
]:\DOCS2\500\Wappinger\Cranberry Hills\Stolman affidavit v4.dhs.doc:ev
9
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
Respondents.
AFFIRMATION IN
SUPPORT OF
MOTION TO
DISMISS
JAMES P. HORAN, ESQ., an attorney duly admitted to practice law before the
Index No.306/2008
CRANBERRY HILLS, LLC,
Petitioner,
ENVIRONMENTAL
CLAIMS PART
For a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules,
-agaitt~t-
THE PLANNING BOARD of the TOWN of
WAPPINGER, and the CHAIRMAN of the
PLANNING BOARD of the TOWN of
WAPPINGER,
Courts of the State of New York, hereby affirms the following under his oath and the
penalties of perjury:
I. I am an Attorney and Counselor at Law, duly licensed to practice Law in
the Courts of the State of New York. I am an associate in the Firm of Vergilis, Stenger,
Roberts & Davis, LLP.
2. Albert P. Roberts, a Partner in the Firm, is the Attorney to the Town of
Wappinger and to the Town of Wappinger Planning Board.
3. I have worked closely with Mr. Roberts in connection with the Petitioner's
..
application for subdivision approval which was pending before the Town of Wappinger
Planning Board. I am fully familiar with the facts and circumstances of this case.
4. I make this Affirmation in support of the Respondents' Motion to Dismiss
the Petition. The basis of the Motion to Dismiss is the failure of the Petitioner to
complete all of the conditions of subdivision plat approval.
5. I have read the Affirmation of Albert P. Roberts, Esq., dated February 27,
2008, and I fully concur with the statements contained therein.
6. I make this Affirmation to detail a telephone conversation I had on
~- December 4, 2007 with James Cannon, of the Army Corps of Engineers (ACOE).
7. In anticipation of the Petitioner's request to have the subdivision plat
signed on or before December 7, 2007, I went online and found the Public Notice (Town
+r
Return Exhibit "K" ), regarding the Cranberry project. The Notice listed James annon
as the contact person for this application.
8. I called Mr. Cannon on December 4, 2007 and discussed the Cranberry
permit with him.
9. Mr. Cannon stated that during the public comment period, a comment was
received from the U.S. Fish and Wildlife Service which expressed concern that the
ar
Cranberry property could be a habitat for the Indiana Bat which is listed as an endangered
species by the Federal Government and New York State.
10. Mr. Cannon indicated that the Fish & Wildlife Service wanted the
Petitioner to put up mist nets (similar to a volleyball net that is used by bat biologists) to
determine if the Indiana Bat was present on site.
11. Because Indiana Bats hibernate during winter months, usually in caves,
and do not come out until spring, the Fish & Wildlife Service requires that mist netting be
done in spring.
12. Mr. Cannon indicated that on the same date (December 4, 2007), he had
received a reply from Cranberry addressing the Fish & Wildlife Service comments. Mr.
Cannon then indicated that it was likely that a permit would not be issued until sometime
in the spring.
13. Mr. Cannon then asked me if Cranberry was in jeopardy of losing a permit
from the Town and I told him that it was in jeopardy of losing subdivision approval.
14. Mr. Cannon told me that the ACOE had considered issuing the permit
with conditions that mist netting be conducted in the spring, but his office had determined
that it could not do so and they had to await further comments from the Fish & Wildlife
Service.
15. I was also present at the meeting at Town Hall on December 7, 2007 when
a speakerphone conference call was held with Mr. Cannon, the representatives of
~~
Cranberry, the Town's consultants and the Chairman of the Planning Board. During the
conversation, Mr. Cannon basically reconfirmed the statements made to me in our
conversation on December 4, 2008.
16. Based on the foregoing, it is clear that the ACOE cannot issue any permits
or approvals until final comments are received from the Fish & Wildlife Service.
Because of the information required from the Fish & Wildlife Service, it is clear that the
ACOE cannot issue any permits or approvals until the Fish and Wildlife Service provides
comments to the AOC sometime after the conclusion of the required mist netting, which
cannot be performed until spring of this year.
~..
WHEREFORE, your affiant respectfully asks for an Order dismissing the
Petition, the award of attorneys fees, costs and disbursements and such other and further
relief that may be just and proper in the circumstances.
DATED: Wappingers Falls, New York
February 27, 2008
JAMES P. HORAN