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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER

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In the Matter of the Application of

VERIFIED PETITION

THOMAS SIMONE and HOLL Y CROSBIE-FOOTE,

Petitioners,

Index No.:

In a Proceeding Pursuant to Article 78 of the CPLR

Against

Date Purchased:

THE VILLAGE OF CROTON-ON-ffiJDSON, THE VILLAGE BOARD OF TRUSTEES of the VILLAGE OF CROTON ON- HUDSON, Leo Wiegman, Ann Gallelli, Demetra Restuccia, Ian Murtaugh, Richard Olver, As Its Members, THE VILLAGE OF CROTON-aN-HUDSON PLANNING BOARD, Chris Kehoe, Vincent Andrews, Frances Allen, Robert Luntz, Mark Aarons, As Its Members, THE VILLAGE OF CROTON-aN-HUDSON WATERFRONT ADVISORY COMMITTEE, Frances Allen, Robert Luntz, Richard Olver, Demetra Restuccia, Charles Kane, As Its Members, and THIRTY-SIX ONEIDA A VE CO., TUCCI ANTONIO LIVING TRUST, BRENDA LLC, FAY PAPPAS, JOHN PAPPAS, JOHN PALLADINO, JANICE SWERDLOFF, KUSSA CORP., KARL FRANK, SUSAN FRANK, ZEV NRECA, ZOJA NRECAI, SUNG SING REALTY CORP., J&E SERVICE INC., MAP REALTY LID., DOMINICK ANTIFEATRO, PATRICIA ANTIFEATRO, JOHN PERILLO, JOSEPH S BORGES ENTERPRISES LLC, APEX INC., CROTON POINT DONE DEAL LLC, JPJ ENTERPRISES INC., RIVERSIDE REALTY OF CROTON, BENEDICTRIVERSIDE CORP., RONALD NAPOLIT ANI, KPT RIVERSIDE REALTY LLC, DEVENDRA K SHARMA, KANW A SHARMA, LVM REALTY CORP., CYNTHIA ELDREDGE, and DAJA VIEW REAL ESTATE INC.,

Respondents.

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Petitioners, by their attorney, Patricia Moran, for their Verified Petition and

Complaint herein, respectfully allege as follows:

SUMMARY OF ACTION

1. Petitioners bring this action against the Village of Croton-on-Hudson ("Village") and the Village Board of Trustees of the Village of Croton- on- Hudson ("Village Board" or "Board of Trustees") to have the Village's recently enacted Local Law No.4, also known as "A local law to Amend the Village of Croton on Hudson Gateway Overlay Zoning district by expanding the area of, and modifying the regulations for, the Harmon/South Riverside Gateway Area," ("Harmon Rezoning Law") declared null and void. Petitioners also seek a determination pursuant to CPLR Article 78 that the Village Board's issuance of a negative declaration (the "Negative Declaration") for the Hannon Rezoning Law was arbitrary and capricious and an abuse of discretion under the New York State Environmental Quality Review Act ("SEQRA"), N.Y. Bnv. Conserv. Law § 8-0101, et seq, Petitioners also seek a determination pursuant to CPRL Article 78 that the Village Board's determination that the Harmon Rezoning Law was consistent with the Village's Local Waterfront Revitalization Program was irrational, arbitrary and an abuse of discretion. Petitioners seek other related relief, including enjoining the Respondents from implementing any of the provisions of the Harmon Rezoning Law.

2. In 2003, the Village, following extensive surveying of the public, enacted a Comprehensive Plan that emphasized the importance of preserving the small scale and historic character of the Village. The Comprehensive Plan also called for the creation of "gateway districts" in commercial areas that would serve as entry points to the Village with certain zoning restrictions. In 2004, after a lengthy EIS process, the Village enacted legislation that codified the creation of three gateway districts in commercial areas of the Village. ("2004 Gateway Legislation"). The Harmon Gateway District, which is located near the Croton-Harmon train station and Route 9,

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and is notable inter alia for its small scale and historic character, proximity to a

national historic landmark, scenic views of the Hudson and its western shorelands,

was one of the three gateway districts created and is the subject of this action.

3. The 2004 Gateway Legislation created zoning "overlays." Parcels in a gateway

district were subject both to their underlying zoning and the gateway "overlay"

zonmg.

4. Among other restrictions in the 2004 Gateway Legislation, parcels in the Harmon

Gateway District were subject to a floor area ratio ("FAR") limit of 0.35 for

commercial use and 0.4 for mixed use, by special permit only, which was a reduction

in the then-permitted floor area ratio. The underlying existing zoning limited

residential use to the second floor (by special permit only). Only two stories were

permitted, though a maximum building height of 35 feet was allowed (though rarely

used). A stated purpose of the FAR restriction was to preserve the small scale and

historic character of the district.

5. In 2007, the Harmon Gateway District, as well as the other business districts of the

Village, began experiencing a noticeable number of commercial vacancies. On

information and belief, a volunteer citizen committee formed to explore what might

be done, starting with the Harmon Gateway District, and ultimately proposed

expanding the Harmon Gateway District, doubling the FAR to 0.8, permitting a third .>:

story, and allowing all three floors to be used for residential apartments, except for

50% of the first floor. A special permit for mixed use or retail use would no longer

be required. In 2009, the committee's proposals were essentially enacted into the

Harmon Rezoning Law.

6. The Harmon Rezoning Law will potentially transform the Hannon Gateway District

from a small scale historic neighborhood commercial district to a high density

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residential district with first floor storefronts. Specifically, the Hannon Rezoning Law's allowance of 1) a significant increase in the bulk of buildings, as well as a likely increase in their height, 2) a third floor, and 3) the conversion of all but 50% of the first floor into residential dwelling units without a special permit, will have significant potential adverse impacts on the Hannon Gateway District and adjacent areas, including obstruction of scenic river views, destruction of small scale and historic character of area, increase in population and density, straining of infrastructure, negative parking and traffic impacts, and higher school taxes.

7. Yet the Village Board determined, with little consideration of the impacts on neighboring residents and a seriously flawed analysis of the impacts it did consider, that the Harmon Rezoning Law would have no potential significant environmental impacts.

8. The Village Board failed to adequately identify and study these impacts in its haste to issue the Negative Declaration and enact the law.

9. The Village Board gave no consideration to the impacts of removing the special requirement for mixed use.

10. The Village Board gave no consideration to the impacts of allowing 50% of the first floor to be residential even if the owner made no other changes to his building.

] 1. The Village Board failed to provide a sufficiently reasoned elaboration to support its Negative Declaration, and failed to take the required hard look at the potential adverse impacts from the Hannon Rezoning Law.

12. The Village Board also improperly segmented its review by deferring its analysis of potential impacts until specific projects were proposed, failing to consider the impacts of two related projects, and failing to treat the Hannon Rezoning Law as the first step of a questionable plan to "revitalize" other business districts in the Village.

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13. The Village Board's flawed environmental review of the Harmon Rezoning Law must be annulled, and the Village must be required to undertake a more detailed, informative, logically consistent and rationally based analysis and evaluation of the impacts the Harmon Rezoning Law will have.

14. The Village Board failed to properly enact the Harmon Rezoning Law in accordance with Municipal Home Rule Law and General Municipal Law. The Village Board did not refer the Local Law to the Westchester County Planning Board ("County Board") after making substantial changes to the Harmon Rezoning Law, including expanding the size of the proposed Harmon Gateway District by 33%, thereby preventing the County from commenting on the substantial changes and their potential impacts. Nor did the Village Board wait the required 7 days after final revision before enacting the Harmon Rezoning Law. Because the Harmon Rezoning Law curtailed the power of the duly elected Board of Trustees to grant or deny special permits and impose conditions on them for mixed and retail uses, it was subject to mandatory referendum. No referendum was held prior to enactment of the Harmon Rezoning Law.

15. The Harmon Rezoning Law was also enacted in violation of provisions of the Village of Croton Village Code ("Village Code"). The Village Code requires that the Village Waterfront Advisory Committee make a final recommendation on whether a proposed law is consistent with the Village's Local Waterfront Revitalization Program ("L WRP") policy standards and conditions, which aim inter alia to preserve and enhance the scenic views of the Hudson and to protect historic and archaeological 'resources in the Village. Although the Committee made an arbitrary and capricious preliminary recommendation that an early version of the Harmon Rezoning Law was consistent, it never reviewed the substantially revised

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version of the Law nor considered other materials that it was required to review prior to making a final recommendation, nor was it given the opportunity to make such a final recommendation, in contravention of the law. The Village Board's determination of consistency with the L WRP was arbitrary and capricious.

16. The Village Code further provides for the Village Planning Board to make specific findings on various impacts on proposed amendments to the zoning sections of the Village Code. The Village Board unlawfully failed to refer the substantially changed version of the Harmon Rezoning Law to the Planning Board, and failed to give the Planning Board adequate time to prepare a full report for the public before enacting the Law.

17. Petitioners also seek a declaratory judgment declaring the Harmon Rezoning Law null and void.

18. The Harmon Rezoning Law violates NY Village Law § 7-704. The Harmon Rezoning Law conflicts with the Village's 2003 Comprehensive Plan and 2004 Gateway Legislation, is not well-considered, and negatively affects the general welfare of the community.

THE PARTIES

19. Petitioner Holly Crosbie-Foote, is an individual residing on Benedict Avenue in the Village, less than 500 feet from the Harmon Gateway District.

20. Petitioner Thomas Simone, is an individual who owns a house on Penfield Avenue in the Village, on information and belief, less than 656 feet from the Harmon Gateway District.

21. On information and belief, Respondent, the Village of Croton on Hudson ("Village"), is a municipal corporation existing by and under the laws of the State of

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New York, located in the Town of Cortlandt, with offices at 1 Van Wyck Street, Croton-on-Hudson, New York 10520.

22. Respondent, the Village Board of Trustees of the Village of Croton-on-Hudson ("Village Board" or "Board of Trustees") is a legislative body formed pursuant to New York State law. On information and belief, the Village Board has offices at 1 Van Wyck Street, Croton-on-Hudson, New York 10520.

23. The Board of Trustees is comprised of the Mayor of the Village of Croton- onHudson and four Trustees. The Mayor and Trustees are all elected officers of the Village. Mayor Leo Wiegman, Trustee Demetra Restuccia and Trustee Ian Murtaugh were elected to the Board of Trustees in March 2009. Trustee Ann Gallelli was elected in March 2006. Trustee Richard Olver was elected in March

2008.

24. The Village Board was the lead agency under SEQRA for the environmental review of the Hannon Rezoning Law, and enacted it on November 16,2009.

25. Respondent, the Village of Croton-on-Hudson Planning Board (Village Planning Board), is a municipal body. On information and belief, the Village Planning Board has offices at 1 Van Wyck Street, Croton on Hudson, New York 10520. The Planning Board is comprised of Chris Kehoe (Chair), Vincent Andrews, Frances Allen, Robert Luntz and Mark Aarons.

26. Respondent, the Village of Croton-an-Hudson Waterfront Advisory Committee ("Waterfront Advisory Committee" or "WAC"), is a municipal body. On information and belief, the Waterfront Advisory Committee has offices at 1 Van Wyck Street, Croton-an-Hudson, New York 10520. The Waterfront Advisory Committee is comprised of Trustees Olver and Restuccia, Frances Allen (Chair), Robert Luntz, and, at the time relevant to this Verified Petition, Charles Kane.

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27. The following Respondents, on information and belief, own property in the Harmon

Gateway District: Thirty-Six Oneida Ave Co., Tucci Antonio Living Trust,

Brenda LLC, Fay Pappas, John Pappas, John Palladino, Janice Swerdloff, Kussa Corp., Karl Frank, Susan Frank, MAP Realty Ltd., Zev Nreca & Zoja Nrecai, Sung Sing Realty Corp., J&E Service Inc., MAF Realty Ltd., Dominick Antifeatro, Patricia Antifeatro, John Perillo, Joseph S. Borges Enterprises LLC, Apex Inc., Croton Point Done Deal LLC, JPJ Enterprises Inc., Riverside Realty of Croton, Benedict-Riverside Corp., Ronald Napolitani, KPT Riverside Realty LLC, Devendra K & Kanwa Sharma, L VM Realty Corp., Dr. Cynthia Eldredge, Daja View Real Estate Inc.

STANDING

28. Petitioner Holly Crosbie-Foote resides within 500 feet of the Harmon Gateway District. As set forth in further detail in her Affidavit submitted herewith, on information and belief, due to her proximity to the Harmon Gateway District, she will suffer injury greater than the general public from the Harmon Rezoning Law's impact on land use, aesthetic resources, traffic and parking, and neighborhood character.

29. Petitioner Thomas Simone owns a property within 656 feet of the Harmon Gateway District. As set forth in further detail in his Affidavit submitted herewith, on information and belief, due to his proximity to the Harmon Gateway District, he will suffer injury greater than the general public from the Harmon Rezoning Law's impact on land use, aesthetic resources, traffic and parking, and neighborhood character. In addition, on information and belief, Mr. Simone will suffer injury greater than the general public from the Harmon Rezoning Law's impact on historic resources, due to his deep and demonstrated interest in and commitment to protecting

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the Village's historic resources, including those in the Hannon Gateway District, and his use and enjoyment of same.

JURISDICTION

30. The Court has subject matter jurisdiction, and may exercise personal jurisdiction over the Respondents in this matter.

31. Pursuant to CPLR § 506(b), venue is proper in this Court. The determinations, findings and actions complained of and the material events took place in the County of Westchester, which is situated within the Ninth Judicial District.

32. No prior application for this or any similar relief has been made to this or any other Court.

FACTUAL BACKGROUND

The Village of Croton-on-Hudson and Harmon

33. The Village of Croton-on-Hudson is located in northern Westchester County in the town of Cortlandt. According to the 2000 Census, its population is approximately 7600.

34. The residential areas of the Village are primarily comprised of single-family homes, although there are some homes with accessory apartments, as well as some twofamily and multi-family homes. There are also two larger apartment complexes in the Village, as well as two small affordable housing complexes, and a large waterfront townhouse development known as HalfMoon Bay.

35. The business districts of the Village are scattered throughout the Village and include the three Gateway Districts and areas adjacent to them, as well as what is known as the "Upper Village."

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36. On information and belief, the "Harmon" section of the Village was annexed to the Village in or around 1933. On information and belief, by the 1920's,_due to its proximity to the Croton-Harmon train station and the marketing efforts of Clifford B. Harmon, Harmon had become a residential neighborhood for railroad workers and commuters to New York City. The homes of Harmon closest to the Harmon Gateway District are small scale (often less than 1500 square feet) and sited on small lots (typically 1/8 to 114 acre). There are a number of bungalows, Sears kit houses and other historic homes in the residential area of Harmon.

37. Although most of Harmon is residential, it has one small commercial section which is comprised of portions of two main roads, South Riverside and Croton Point Avenues. Following passage of the Harmon Rezoning Law, most, but not all, of the commercial section of Harmon is included in the Harmon Gateway District.

38. Most of the buildings in the Harmon Gateway District are one or two stories and small scale. The predominant commercial use on South Riverside Avenue is or was until recently automotive-related. The remaining parcels house restaurants, a Laundromat, a florist, a convenience store, two beauty salons, professional office space, take-out food/delis, nail salons and a boutique. Some of the non-automotive related buildings have residential apartments on their upper floors.

39. The original real estate sales office of Clifford B. Harmon ("the Historic Harmon Sales Building") still stands on the comer of South Riverside Avenue and Benedict A venue, and currently houses a nail salon. On information and belief, the Harmon Gateway District is also within 500 feet of National Historic Landmark Van Cortlandt Manor.

40. A number of parcels in the Harmon Gateway District have significant views of the Hudson River, as do some parcels adjacent to them.

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Relevant Prior History

2003 Village Comprehensive Plan

41. The Village adopted a Comprehensive Plan in 2003. Excerpts from the

Comprehensive Plan are submitted separately as Exhibit 1 ("2003

Comprehensive Plan).'

42. The 2003 Comprehensive Plan "strongly endorsed" the goals of the 1977 Master

Plan for the Village, which stated:

[T]he essential character of Croton-on-Hudson is-a community of individual house owners, residing in single-family dwellings on separate lots ... this essential character should be preserved, with a modest increase in the number of town houses, attached dwellings and small apartments." See 2003 Comprehensive Plan at 75, Exhibit 1.

43. The 2003 Comprehensive Plan further "strongly recommends" that the Village

discourage any further large-scale residential development, and states that the

recommendatiori is "vital to preserving the Village's character." Id. at 75, see also

id. at 106.

44. One of the basic goals of the 2003 Comprehensive Plan was to preserve the historic

character of the Village:

The history and small town character of Croton-on-Hudson was viewed as central to its distinctive charm. Building upon Croton-on-Hudson's historic assets and character throughout the Village is a central objective, to be realized through historic preservation efforts including the sensitive renovation of older structures, and the creation of architectural review standards and preservation ordinances in commercial zones where appropriate. Id. at 78.

45. The 2003 Comprehensive Plan stresses the importance of scale and neighborhood

character. Specifically regarding commercial districts, the 2003 Comprehensive Plan

states that "If rezoning to commercial is done in the future, the scale and massing

of the existing structures should be maintained. Specifically, the assembling of the

J All Exhibits cited herein are bound separately and submitted as part of this Verified Petition. Because many of the Exhibits cited in this Verified Petition presumably wiII be included in the Return, Petitioners are submitting only relevant excerpts from documents which should be so included.

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multiple parcels which would enable large-scale retail development should be

prohibited." Id. at 82 (emphasis added).

46. With respect to housing, in a section entitled "4.6 Residential Neighborhoods and

Housing," the 2003 Comprehensive Plan states the following:

1. Recommendations for housing in the Village therefore focus primarily on two areas: maintaining the scale and character of Village neighborhoods, and exploring affordable housing opportunities ...

ii. Neighborhood Scale and Character. The strategies described in this section focus on preserving the scale and character of Croton- onHudson's neighborhoods. These specific strategies include: .. .Issuing housing scale requirements to limit the bulk of new buildings

iii. This Plan also recommends that any further large-scale residential developments, other than the approved extension of Half Moon Bay, be discouraged, so that the existing development pattern in the Village can be preserved and that no further gated communities be approved ...

iv. In Harmon, the compact, smaller scale of the homes and green quality of the streets contribute to the charm of the neighborhood.

ld. at p. 106 (emphasis added).

2004 Gateway Legislation

47. The 2003 Comprehensive Plan designated three commercial areas in the Village as

"Gateway Districts." The defining characteristics of Gateway Districts, according to

the Comprehensive Plan, are:

A) Vehicular entry points into Croton on Hudson from Routes 9/9A

B) Commercial uses oriented toward automobile traffic

C) Guidelines and concepts for new development when and if opportunities

arise. Id. at p. 82 (emphasis added).

48. The Harmon/South Riverside Gateway District ("Harmon Gateway District") was

defined as "running along Croton Point A venue between Route 9 and South

Riverside Avenue, and along South Riverside A venue between Croton Point A venue

and Benedict Boulevard." ld. at 84. It was further described as "an important link to

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the train station via Croton Point Avenue and to the Harmon neighborhood. It also

joins historic Van Cortlandt Manor to the south." Id

49. In 2004, following a lengthy SEQRA process that included draft and final

Environmental Impact Statements, the Village enacted Local Law Introductory No.

3, a local law establishing Gateway Overlay Districts for the Village ("2004 Gateway

Legislation"), submitted as Exhibit 2.

50. The Village Board made "findings" pursuant to SEQRA regarding the 2004 Gateway

Legislation ("2004 Gateway SEQRA Findings"), a copy of which are submitted as

Exhibit 3. The purpose of the 2004 Gateway Legislation was described by the

Village as follows:

i. Drawing on goals set out in Croton's 2003 Comprehensive Plan, the village is proposing the adoption of a gateway overlay district law to establish standards that will upgrade the image and function of gateway areas, strengthen the overall visual identity of the village, and improve linkages to adjacent residential neighborhoods. See id. at p. 1 (emphasis added).

51. As anticipated in the 2003 Comprehensive Plan, the 2004 Gateway Legislation

formally created three "gateway overlay districts," one of which was the Harmon

Gateway District. A schematic drawing of the original Harmon Gateway District

shown in Exhibit 1, p. 93.

52. Prior to the 2004 Gateway Legislation, the area encompassed by the Harmon

Gateway District was zoned C-2/General Commercial. In a C-2 district, various

commercial uses are permitted, see Village of Croton on Hudson Village Code

("Village Code") §§ 230-16,230-17.2 Retail uses and mixed occupancy (e.g.,

residential dwelling units) are available only by special permit from the Village

Board. See Village Code § 230-17 and § 230- 42.1. Regarding bulk and height, only

2 A copy of all Croton-on-Hudson Village Code sections cited in the Verified Petition and Memorandum of Law are submitted, in numerical order, at Exhibit 4.

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two stories are permitted, the maximum building height is 35 feet, and the maximum

permitted floor area ratio is 0.50. See Village Code § 230-35. Dwelling units are

not permitted on the first floor. Ifthere are any dwelling units on the second floor,

the owner must provide two parking spaces per dwelling unit. See Village Code §

230-42.1.

53. Floor area ratio ("FAR") is defined in the Village Code as "the floor area in square

feet, of all buildings on a lot divided by the area of such lot in square feet." Village

Code § 230-4, Exhibit 4.

54. The 2004 Gateway Legislation changed the permitted FAR in all gateway districts,

including the Harmon Gateway District, to .35 for single use properties and .4 for

mixed use properties. For the Harmon Gateway District, this constituted a reduction

in permissible FAR. The Draft Generic Environmental Impact Statement for the

2004 Gateway Legislation ("DGEIS") stated that "the overall impacts of reducing

the FAR and the incentive FAR [for mixed use] are beneficial." DGEIS, p. 39.

Excerpts from the DGEIS are submitted as Exhibit 5.

55. The Village Board issued a Final Generic Environmental Impact Statement

("FGEIS") that incorporated public comments about the 2004 Gateway Legislation

and the Village's response. In response to a question about the wisdom of reducing

the FAR, the Village stated:

The reduction in total buildable FAR of gateway properties is enacted to help the village achieve a number of the goals identified in the Comprehensive Plan. These goals include: preserving the historic, small-town character of the village; improving the visual quality of the village; and improving commercial areas. By reducing total FAR, the gateway legislation encourages new development and expansion appropriate in scale to a small, historic village. Furthermore, the enactment of standards that encourage visually appealing and appropriately-scaled development creates a more attractive and inviting shopping environment, leading to more successful commercial areas.

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The question and answer are excerpted from the FGEIS and submitted as Exhibit 6.

See id. at pp. 23-28 (emphasis added).

56. The 2004 Gateway SEQRA Findings, in summarizing the 2004 Gateway Legislation,

reiterated the rationale for reducing the FAR:

i. Area and Bulk Regulations. Under the proposed zoning, an FAR of 0.35 is permitted for single-use properties and 0.4 for mixed-use properties in the gateway areas. These proposed F ARs represent a decrease in the FAR permitted in the underlying zoning districts for the South Riverside and Municipal Place gateway areas (0.50, as permitted in C-2 districts) ... The proposed FARs will restrict the development potential in the gateway areas, thereby encouraging smaller-scale development more appropriate to the scale and historic character of the village.

ii. The additional 0.05 FAR permitted for mixed-use properties is designed to provide an incentive to develop properties for multiple uses. Over time, mixed-use development may result in a greater mix and diversity of uses within the gateway areas, in turn encouraging a greater number of users and stimulating the local economy. See 2004 Gateway SEQRA Findings, p. 6., Exhibit 3 (Emphasis added).

57. The Village Board further found that most of the properties in the Gateway

Districts, though already improved, had not been fully built out to the extent

permitted even with a reduced FAR:

"[t]hrough the FAR and building size regulations, the regulations will encourage development that is appropriate to the small-scale character of the village. The regulations will restrict the extent to which property owners can expand; however, since most of the already-improved properties are not fully built-out, property owners will still have room for expansion." 2004 Gateway SEQRA Findings, p. 2-3, Exhibit 3.

58. The 2004 Gateway Legislation SEQRA materials did not limit their assessment of

the beneficial impacts of a reduced FAR to preservation of small-scale and historic

character values. The DGEIS explicitly states that the "overall impact" of reducing

the FAR is beneficial. DGEIS at p. 39. More specifically, the DGEIS enumerated

the numerous beneficial impacts of the 2004 Gateway Legislation's reduced FAR:

• AIR QUALITY & NOISE The proposed overlays will reduce density [by lowering the FAR] and limit hours of operation to 16 hours within

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any 24-hour period. These restrictions will have a beneficial. impact on air quality and noise within the gateway areas. With reduced density and "educed hours of operation, Jewel' vehicular trips wi II be generated than under the current zoning ...

• COMMUNITY FACILITIES AND SERVICES ... However, in the longer term, the reduction of/he maximum density permitted within the gateway areas will effectively limit the potential impact oncommunity facilities and services as compared to the existing zoning which allows higher densities within the gateway areas.

• TRANSPORTATION The proposed overlay will reduce the maximum perm itted density within the gateway areas and lim it the size of retail permitted. 111 the long-term, thereduction in density, retail size limitation and design improvements may increase the amount of foottraffic in the gateways and reduce the amount ofvehieular traffic as compared to development permitted under current zoning. The impact on transportation will therefore be beneficial.

• mSTORIC, CULTURAL & VISUAL RESOURCES .. .In combination with the proposed regulations to limit large-scale retail and density, the proposed overlay design guidelines will have a significant beneficial impact on the visual character of the Village of Croton -on-Hudson.

• SOCIOECONOMIC & NEIGHBORHOOD CHARACTER ..• The FAR reduction will limit potential density within the gateway areas, however, as a result the parking requirement will also be reduced and there will be a greater requirement for open space than under the existing zoning.

See DOElS, pp. iii-iv, Exhibit 5 (emphasis added).

59. The 2004 Gateway Legislation also prohibited certain uses within the gateways,

including but not limited to automobile dealerships and fast food restaurants.

60. The 2004 Gateway Legislation further provided design guidelines protective of the

small scale values embodied in the legislation. With respect to the Harmon Gateway

District, the law provided:

New development, landscaping and streetscaping in the South RiversideIHarmon district shall be designed to enhance the district's small-scale character and to improve connections between the railroad station and the South Riverside/Harmon shopping area. Village Code § 230- 20.6, Exhibit 4 (emphasis added).

61. In 2004, the Village Board stated, with respect to Van Cortlandt Manor:

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The overlay district's bulk, use and design guidelines aimed to improve the major entry points into the Village will create a more attractive overall setting for the Manor. 2004 Gateway Legislation DGEIS, p. 31, Exhibit 5.

Local Waterfront Revitalization Program (L WRP)

62. The Village Local Waterfront Revitalization Program (L WRP) Consistency Review

Law ("L WRP Law") is another part of the Village Code that reflects the officially

adopted goal and policy to protect, enhance and utilize the natural and man-made

resources of the unique coastal area of the Village of Croton on Hudson. Village

Code § 225~2, Exhibit 4. The entire Village of Croton on Hudson is considered

within the Coastal Zone under the LWRP Law. Village Code §225~4, Exhibit 4.

The policies to be considered under the L WRP Law are contained in the Village of

Croton on Hudson L WRP ("Village L WRP"). Sections of the Village L WRP that

are cited herein are submitted as Exhibit 7.

63. The Village L WRP identifies South Riverside Avenue and the Route 9 corridor as

having "local and regional significance because it allows unparalleled views of

western shorelands [of the Hudson River] from major thoroughfares." LWRP, p. III~

37, Exhibit 7.

64. L WRP policies relevant to the Harmon Rezoning Law are:

Protect local scenic resources by preventing ... the addition of structures which because of siting scale will reduce identified views or which because of scale, form, or materials will diminish the scenic quality of an identified resource. (Policy 25A), p. III~36, Exhibit 7.

Ensure Developments on or adjacent to Route 9 do not impair scenic resources or views of or from the Hudson and Croton rivers. (Policy 25C), p. III~36, Exhibit 7.

Protect, enhance and restore structures, districts, areas of sites that are of significance in the history, architecture, archaeology or culture of the state, its communities, or the nation. (Policy 23), p.1II-32, Exhibit 7.

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Economic Slowdown and Creation of Harmon Business Development Committee.

65. By approximately 2007, the commercial areas of the Village, including the Harmon Gateway District and parcels in close proximity to it, experienced a number of vacancies. On information and belief, the then-Mayor of the Village appointed a group of citizens who had formed to study what could be done to improve the commercial climate and reduce the vacancies in the Harmon Gateway District and nearby area as an official committee of the Village. This committee was known as the Harmon Business Development Committee (the "HBDC" or "HEDC").

66. On information and belief, the HBDC procured a study that concluded that the "Harmon District" could support an additional 11,000-14,000 square feet of commercial uses in addition to what was currently occupied in the area ("Retail Study").

67. The HBDC also procured a property utilization study to 1) determine how much each individual property in a potentially expanded Harmon Gateway District could develop, subject to parking requirements, and 2) arrive at a recommended FAR based on the results ("Property Utilization Study"). The Property Utilization Study was done by consultants Saccardi & Schiff. The Property Utilization Study concluded that an FAR of 0.8 would be appropriate in the Harmon Gateway District because it was mathematically achievable and "would provide a clear message to the market that development and investment in the area could achieve a high rate of utilization." Property Utilization Study, p. 3. Excerpts from the Property Utilization Study are submitted as Exhibit 8.

68. Following the Retail Study and the Property Utilization Study, in August 2008, the HBDC recommended that the Harmon Gateway District be expanded and that the 2004 Gateway Legislation be substantially altered. See "HBDC August 2008 Zoning

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Recommendations Report," excerpts from which are submitted as Exhibit 9. Specifically, the HBDC recommended for the Harmon Gateway District, inter alia, 1) that the permissible FAR be increased from 0.35 or 0.4 to 0.8; 2) that buildings be permitted to have a third story, which had to be residential; 3) that only 50% of the first floor had to be commercial but had to face the street; and 4) that mixed use be as of right, rather than by special permit from the Village Board. The HDBC further recommended that no building be permitted to develop to 0.8 FAR unless it met parking and certain other requirements, and the maximum height of 35 feet remained unchanged. Jd. at p. 4.

69. On October 28,2008, the Village Board of Trustees held a work session devoted to a presentation and discussion of the HBDC Zoning Recommendations.

70. Following the October 28, 2008 work session, the HBDC prepared a list of questions asked at the work session and the HBDC's answers. A copy of the "FAQ - Harmon Zoning Change Recommendations" is submitted as Exhibit 1 O. Among the questions included in the F AQ-Harmon Zoning Change Recommendations are "How was the existing comprehensive plan taken into consideration into these recommendations" and "What would the impact be for properties on [adjacent]

y oung Ave. with back yards abutting proposed shared parking on Riverside?" See id. at p. 1-2, 5-6.

71. No significant further action was taken on the HBDC recommendations by the Village Board until March 2009, following an electoral change in the Board of Trustees.

Related Developments in the Harmon Gateway District

72. In May 2009, the Village announced that it had received a $1.2 million federal grant for traffic infrastructure changes on Croton Point A venue and the creation of a

19

shared bicycle/pedestrian path along Croton Point and South Riverside A venues.

The infrastructure and bicycle/pedestrian path will be located in or adjacent to the

Harmon Gateway District. A copy of the Village newsletter announcing the grant

award as well as excerpts from the grant application ("Transportation Grant

Application"), are submitted as Exhibit 11.

73. In September 2009, the Village entered into a $97,000 contract with Tim Haahs &

Associates to study building a parking deck to create additional parking spaces at the

Village-owned Croton-Harmon train station parking lot, the entrance to which is

approximately 500 feet from the Harmon Gateway District. A copy of the contract is

submitted as Exhibit 12.

Related Developments Outside of Harmon Gateway District.

74. The Harmon Rezoning Law is one step of a broader effort by the current Village

Board to "revitalize" all business districts in the Village. As set forth below and

infra, various documents indicate that one way in which the current Village Board

intends to "revitalize" is through introducing or expanding "mixed use" development

in some or all of those districts.

75. On information and belief, in or about April 2008, Trustee Ann Gallelli stated on the

New York Conference of Mayors ("NYCOM") website that the HBDC's plans were:

"basically about a three block stretch of commercial first floor with two floors of mixed use (probably residential above), with buildings built close to the street with pedestrian friendly frontage and parking to the rear. We want to get the public to buy into this for support of the zoning changes. We also are prepared to move towards doing the same kind of analysis for a second commercial Gateway where the Village actually owns a number of the parcels." (emphasis added)

On information and belief, Mayor Wiegman (though not in elective office at the

time) also participated in Ms. Gallelli's online conversation. Trustee Gallelli and

Mayor Wiegman's comments on the NYCOM site are submitted as Exhibit 13.

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76. At the May 19, 2008 Village Board meeting, Trustees Olver and Gallelli introduced

a resolution to expand the work of the HBDC to include the Municipal Place and

Upper Village commercial areas of the Village. The resolution was tabled. See

Village Board Meeting Minutes 5-19-08, submitted as Exhibit 14.3 The then-Mayor

noted that [what was to become the Retail Study] would examine whether the

Village had too much commercial space throughout its districts to support local

demand. See id.

77. On information and belief, on or about March 11, 2009, the soon-to-be-elected

Mayor Wiegman stated at a public campaign debate that "Revitalizing our

commercial areas is the biggest issue Croton faces today. Mixed-use redevelopment

can and will secure the vitality of the village of decades to come." The Mayor's

remarks are posted on his personal business website, a copy of which are submitted

as Exhibit 15.

78. Following the election of Mayor Wiegman in March 2009, the Village Board

announced on April 14, 2009 that it was re-establishing and expanding the Economic

Development Committee, formerly known as the Harmon Economic Development

Committee. The description of the Committee accompanying the announcement

stated that the committee:

will examine each of Croton's business districts to discover opportunities for revitalization of the district and improve the integration of the commercial areas with the surrounding residential or other zones, and of the commercial areas with each other. See April 2009 Committee Announcement & Description from Village website, submitted as Exhibit 16.

79. At the April 20, 2009 Village Board meeting, in connection with announcing that the

Board had referred the "Harmon Economic" options to attorneys for drafting of a

3 Excerpts from Village Board Meeting Minutes cited in the Petition and Memorandum of Law are arranged in chronological order at Exhibit 14.

21

local law, Mayor Wiegman announced that "they" would be beginning analysis of other business districts in the Village. See Village Board Meeting Minutes 4-20- 2009, Exhibit 14.

Vjl1age Board Introduces New Zonjng for Harmon Rezoning Law

80. On or about July 13,2009, the Board of Trustees introduced "LOCAL LAW INTRODUCTORY NO.4 0[2009" (Proposed Harmon Rezoning Law July Version"). A copy of the Proposed Harmon Rezoning Law July version is submitted as Exhibit 17.

81. The Proposed Harmon Rezoning Law-July Version, as drafted, covered 36 parcels in Hannon's commercial district. Although all of the parcels were subject to C-2 (General Commercial) zoning, some of them were also subject to additional zoning restrictions because they were in the Harmon Gateway District. However, not every parcel in the Harmon Gateway District was included in the Proposed Harmon Rezoning Law-July Version. Thus, the Harmon Rezoning Law-July version created a scheme in which commercial parcels in Harmon could be subject to one of three zoning possibilities: a) subject to C-2 restrictions only; b) subject to C-2 restrictions plus 2004 Gateway Legislation; or c) subject to C-2 restrictions and Proposed Harmon Rezoning Law-July version.

82. The Proposed Harmon Rezoning Law-July Version followed the recommendations of the HBDC in that it allowed a third floor for residential use only, doubled the permissible FAR from 0.4 to 0.8, required that the first floor be only 50% commercial, and allowed mixed use as of right rather than by special permit. In addition, parking requirements were modified so that, while the requirement of two parking spaces per dwelling unit remained unchanged, non-residential parking

22

requirements were reduced by one space for each residential unit in a mixed use

building.

The SEQRA Process Begins

83. On July 13,2009, the Board of Trustees appointed itselflead agency for SEQRA

purposes for the Proposed Harmon Rezoning Law July Version, and issued Parts 1

and 2 of the Environmental Assessment Form ("EAF") in connection with the

Proposed Harmon Rezoning Law-July Version. A copy ofthe EAF Parts 1 and 2 is

submitted as Exhibit 18.

84. Parts 1 and 2 of the EAF contain a number of material misstatements.

85. The EAF Part 1 falsely states that the site does not "include scenic views known to

be important to the community," although it notes that "the Village is located in the

Hudson Highlands scenic area of significance." See EAF Part 1, p. 3, Question 14;

see also Question 11, p. 4, Exhibit 1.8. In fact, many of the parcels proposed to be

rezoned have significant views of the Hudson River. Two such parcels were the

subject oflitigation in 1990 between the Village Planning Board and the owner of

the parcels, because the parcel owner proposed to build a canopy over its gas station

pumps that allegedly would obstruct these scenic views. The Village Planning Board

objected to the size of the canopy on the grounds it would block the Hudson River

views available from the parcel and surrounding streets. Thus, Trustee Ann

Gallelli, who in 1990 chaired the Village Planning Board, stated in her affidavit

opposing the canopy:

Below the Exxon property, to the south and west, are the Croton marshes, a large wetland area, and the Hudson River, looking toward the Tappan Zee. From South Riverside Avenue, approaching the intersection with Croton Point A venue, vehicles or pedestrians have a clear view across the

Exxon station to the marshes and the Hudson River ... [the canopy] would seriously obstruct and interfere with the significant river views enjoyedfrom

23

South Riverside Avenue. See Gallelli Affidavit, pp. 4-5, submitted as Exhibit 19.

86. The Village Planning Board lost in court and the canopy went up. On information

and belief, no other view-obstructing construction in the immediate vicinity has gone

up since, and the scenic Hudson river views are still there to enjoy, from both the

Exxon station (now a Gulf station) and many other points along South Riverside and

Croton Point Avenues. The canopy - which is approximately 20 feet tall- is still

there, as are the Hudson River views on and in the vicinity of the same parcel. Yet

the Village Board enacted a zoning law that would permit a vastly bulkier, taller and

more view-obstructing building on exactly the same site, as well as many others sites

with scenic vantage points. Photographs taken in March 2010 showing views near

the Exxon property (now a Gulf gas station), including the litigated canopy, as well

as some other Hudson River views available in the Harmon Gateway District, are

submitted as Exhibit 20.

87. The EAF Part 1 falsely states that the Harmon Rezoning Law is "consistent with the

recommended uses in adopted local land use plans" (p.5, question 6) and the EAF

Part 2 fails to indicate that the Harmon Rezoning Law "conflict( s] with officially

adopted plans and goals." See EAF Part 2, question 19. In fact, the Harmon

Rezoning Law's increased density and allowance of a third story conflicts with the

goals of preservation of small scale and historic character of commercial districts

contained in the 2003 Comprehensive Plan and 2004 Gateway Legislation and

implemented through a reduction of FAR in the 2004 Gateway Legislation.

Moreover, the Harmon Rezoning Law, by incentivizing large scale development of

large apartments through increased FAR and a newly-permitted third story, conflicts

with the Comprehensive Plan's goal oflimiting residential development to single

family dwellings except for a modest increase in small apartments. As shall be seen

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infra, the Harmon Rezoning Law also conflicts with the land use policies of the Village Local Waterfront Revitalization Program 1) by obstructing scenic views of the Hudson River and western shore lands along South Riverside Avenue and 2) incentivizing redevelopment, rather than enhancement and preservation, of the Historic Harmon Sales Building.

88. The EAF Part 1 falsely states that the project is not "substantially contiguous to, or contain a building, site, or district, listed on the State or the National Registers of Historic Places," although it notes that "Van Cortlandt Manor, which is located on the National Register of Historic Places, is located to the southeast." EAF Part 1, p.3, question 6, Exhibit 18. In fact, the southernmost parcel in the area proposed to be rezoned is, on information and belief, less than 500 feet from Van Cortlandt Manor, and was described in the EAF for the 2004 Gateway Legislation as substantially contiguous and "proximate" to the Harmon Gateway District See EAF for Proposed Gateway Overlay District Ordinance, p.1 0 (question 6) and p. 14 (excerpts submitted as Exhibit 21).

89. The EAF Part 1 falsely states that the predominant land use(s) and zoning classifications within a I/! mile radius of the proposed action are "Zoning: c-2, RA-5, RB (two family residence), Land Use: residential, religious, vacant land, retail, office, personal service, fire house, auto related uses, gas stations, restaurants." There are two other major predominant uses. The Croton-Harmon train station is located within I/! mile of the proposed action, and is one of the largest and busiest commuter railroad stations in Westchester County. It is also an Amtrak station. National historic landmark Van Cortlandt Manor is also located within I/! mile (500 feet) of the proposed action.

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90. The EAF Part 1 falsely states that it is compatible with adjoining/surrounding land uses within a I4 mile. The creation of high density 3-story high residential housing is not compatible with the single family homes in the immediate vicinity nor with the major local roads to the train station and Route 9 on which the housing is to be situated.

91. The EAP Part 2 falsely states that it will not impact any site or structure of historic, prehistoric or paleontological importance. As noted above, the southernmost portion of the Harmon Gateway District is substantially contiguous to Van Cortlandt Manor, a national historic landmark. The area proposed to be rezoned also includes a historic building located at the corner of Benedict Avenue and South Riverside Avenue (73 Benedict Avenue) that, according to documents submitted by the Croton Historical Society to the New York State Historic Preservation Office, is the first building built by Clifford B. Harmon, the founder and creator of Harmon (later annexed to the Village of Croton-on-Hudson), and served as the real estate sales office for the original Harmon lots ("Historic Hannon Sales Office"). See Affidavit of Thomas Simone in Support of Verified Petition ("Simone Aff.")' 11 and Exhibit C attached thereto. The Croton Historical Society, a non-profit corporation housed in the Village Municipal offices dedicated to the preservation of the history of the Village, wrote twice to the Mayor and Village Board in 2009 that it was "aware of the Harmon Project under discussion" and pointing out the existence and importance of the Historic Harmon Sales Building. See Simone Aff., 9 and Exhibit A attached thereto.

92. On information and belief, in October 2009, the Village Historian wrote a lengthier letter to the Village Board expressing concern about "the future of the Clifford B. Harmon building on 73 Benedict Boulevard" and asked that it be excluded from the

26

proposed Harmon Rezoning Law. She also notified the Village Board that she was "awaiting word from the Office of Historic Preservation in Albany regarding the designation of this building as a historic site." See Simone Aff. ~~ 10-11 and Exhibits Band C attached thereto.

93. Per the instructions on the EAF Part 2, the facts recited in ~~ 85-92 required the Village Board to acknowledge that its proposed action would have potential large impacts on aesthetic and historic resources and land use.

94. As a result of the false answers on the EAF Parts 1 and 2, the Village failed to identify and take a "hard look" at numerous potential environmental impacts.

95. The EAF Part 2.did identify 4 areas of potential small to moderate impact: a) aesthetic resources; b) traffic; c) growth and character of community or neighborhood; and d) land use.

96. On July 13,2009, the Board of Trustees passed a resolution commissioning consultants Saccardi & Schiff to prepare for the Board of Trustees' consideration a Part 3 for the EAF in connection with the Harmon Rezoning Law-July Version, to further assess potential impacts of the items that were described in Part 2 of the EAF as having potential impacts.

97. The Proposed Harmon Rezoning Law-J uly version, along with Parts 1 and 2 of the EAF, were referred by the Village Board of Trustees to the Westchester County Planning Board ("County Board"), the Village Planning Board, and the Village Waterfront Advisory Committee on or about July 13,2009.

98. The Village Planning Board met at its next regularly scheduled meeting on July 14, 2009 with the ViIlage Attorney and a representative of Saccardi & Schiff and discussed various issues regarding the proposed Harmon Rezoning Law-July version. At the conclusion of the discussion, Planning Board Chairperson Chris Kehoe

27

indicated that he would wait to hear back from Saccardi & Schiff on the completion

of the EAF Part 3. See Planning Board Meeting Minutes 7~14-09, Exhibit 22.4

The Waterfront Advisory Committee Issues Preliminary Recommendation of Consistency

99. Under Village Code § 225, the Village's Waterfront Advisory Committee (the

"Committee" or "WAC") is charged with reviewing legislative actions such as

zoning changes for consistency with the Village's Local Waterfront Revitalization

Program ("L WRP") policy standard and conditions. See id., Exhibit 4.

100. Among the Village L WRP policies relevant to the Harmon Rezoning Law are

protection of historic and archaeological resources (Policy 23) and protection and

upgrade of scenic resources (Policies 24, 25, 25A, 25B, 25C and 25D). See Village

LWRP, Exhibit 7.

101. The Village Board cannot enact zoning legislation without a determination that

it is consistent with the Village's LWRP. See Village Code §225-4(B), Exhibit 4.

102. The Waterfront Advisory Committee's reviewing process involves two steps:

the Committee first undertakes a preliminary review of the proposed action and

issues a preliminary recommendation as to whether the action is consistent with the

Village L WRP policy, standards and conditions. Village Code § 225-6 (D), Exhibit

4. In the case ofa proposed action undergoing a SEQRA review, if the lead agency

issues a Negative Declaration, the Committee has 20 days to review the matter and

issue a final recommendation. Village Code § 225-6 (E), Exhibit 4.

103. The lead agency, which in this case was the Village Board of Trustees, then _

makes its determination of consistency with the L WRP policy standards and

conditions. Village Code § 225-6(E), Exhibit 4. Contrary to the statutory

4 Excerpts from Village Planning Board Meeting Minutes cited in the Petition and Memorandum of Law are arranged in chronological order at Exhibit 22.

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requirements, the Village Board bypassed the second step of the review process by making a determination of consistency (without benefit of a final recommendation and findings from the Committee) at the same time it issued its Negative Declaration, and then voting in the Harmon Rezoning Law moments thereafter.

104. As a result of the Village Board's action, the Waterfront Advisory Committee

never issued a final recommendation, nor is there any evidence that it ever reviewed the substantially revised Harmon Rezoning Law-October version or the EAF Part 3.

105. The Waterfront Advisory Committee conducted the first step of the review

process at a meeting held on August 5, 2009. Village Engineer Daniel O'Connor also attended the meeting. See WAC Meeting Minutes 8-5-09, Exhibit 23.

106. The Waterfront Advisory Committee reviewed a Coastal Assessment Form

("CAF") prepared on behalf of the Village Board by its consultant, Saccardi & Schiff. See Exhibit 24.

107. According to the minutes posted on the Village website, at the August 5, 2009

WAC meeting, Chairperson Fran Allen stated that, in response to the question on the CAF "Will the proposed action be located in, or contiguous to, or have a potentially adverse effect upon any of the resource areas identified on the coastal area map," the answer would be "yes" if the proposed action were a specific building project. However, because the proposed action was for zoning, the answer "could be no," as each future building project could be looked at individually for consistency with the L WRP policy standards and conditions. See WAC Meeting Minutes 8-5-09, Exhibit 23.

108. According to the minutes, at the August 5, 2009 meeting, in contrast to the

position taken by the Board of Trustees on the EAF Part 1 and the CAF that the Harmon Rezoning Law did not include scenic views known to be important to the

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community, when discussing whether the Harmon Rezoning Law would have a potentially adverse effect upon scenic resources of local or statewide significance, Trustee Olver told the Committee that scenic impact was a legitimate concern. Trustee Olver maintained that because the 35-foot height restriction would still be in place, "There would be no difference in terms of sight lines." See id.

109. Trustee Olver was incorrect because the increase in permissible FAR and the

allowance ofa third story makes taller buildings more likely. Village Engineer Dan O'Connor, who attended the meeting, pointed out this possibility, but stated that he did not know personally if the building bulk on a higher level would have an impact on views. See id.

110. The "Explanation of Policy" accompanying Village LWRP Policy 25

recognizes that "South Riverside Drive [sic] and the Route 9 corridor is also considered of local and regional significance because it allows unparalleled views of western shorelands from major thoroughfares. In order to protect these views, existing deteriorated structures west of the right-of-way should be improved ... ".

See LWRP at 1II-37, Exhibit 7. Committee member Kane took the position that "sprucing up" Harmon was consistent with this policy. See WAC Meeting Minutes 8-5-09, Exhibit 23.

111. The position that allowing and incentivizing redevelopment via higher

density three-story buildings (that are east of the Route 9 right-of-way) that would potentially block or impair Hudson River and western shoreland views presently available is inconsistent with Village L WRP Policy 25.

112. According to the WAC meeting minutes, in discussing whether "the proposed

action would have a significant effect upon structures, sites or districts of historic, archeological or cultural significance," Trustee Olver noted the Historic Harmon

30

Sales Office had significance in the history of the Village, its preservation should be valued, and that a public campaign was likely to ensue if a developer chose to redevelop the property. Noting that redevelopment could occur under the thenexisting zoning laws, Trustee Olver concluded that the Harmon Rezoning Law did not significantly affect the status of the Historic Harmon Sales Office, even though he recognized that the stated purpose of the Harmon Rezoning Law is to encourage redevelopment through the use of the increased FAR/third story incentive. See WAC Meeting Minutes 8-5-09, Exhibit 23.

113. Because the purpose of the Harmon Rezoning Law is to facilitate and

incentivize redevelopment through the removal of a special permit requirement for mixed use, an increase in permissible FAR and allowance of a third story, all properties in the Harmon Gateway District, including the Historic Harmon Sales Office, become more likely targets of redevelopment. Therefore the status of the Historic Harmon Sales Office is significantly affected by the Harmon Rezoning Law, contrary to the view expressed by Trustee Olver at the 8-5-09 WAC meeting. As a small, one-and- a -half-story building, the Historic Harmon Sales Office site appears particularly attractive for redevelopment.

114. Chairperson Allen noted that she "would not want to tum the main

thoroughfare [of Harmon] into a tunnel with very little light," and thought a "smaller building" at the comer of Benedict Boulevard and South Riverside Avenue would be appropriate. Trustee Restuccia opined that this issue was best taken up by the Planning Board rather than the Waterfront Advisory Committee. See WAC Meeting Minutes 8-5-09, Exhibit 23.

115. The Waterfront Advisory Committee concluded at the August 5, 2009 meeting

that the Harmon Rezoning Law-July version was consistent with the Village's

31

L WRP policy standards and conditions. The August 6, 2009 memorandum from Chairperson Fran Allen memorializing that decision and issuing the Committee's preliminary recommendation of consistency is submitted as Exhibit 25 ("Preliminary Recommendation of Consistency 8-6-09"). Said memorandum reflects that only the Coastal Assessment Form prepared by consultants Saccardi & Schiff ("CAF") was reviewed, and "clarified that the ... review in this case is for zoning changes and not for a specific building and/or construction projects." Id.

116. The Preliminary Recommendation of Consistency 8-6-09 is irrational,

arbitrary and capricious.

117. The Waterfront Advisory Committee's Preliminary Recommendation of

Consistency 8-6-09 was posted to the Village website with other Harmon Rezoning Law documents. The WAC Meeting Minutes of 8-5-09 were posted elsewhere.

A Draft EAE Part 3 Is Issued and the Proposed Law is Snbstantially Revised

118. On or about September 3,2009, Saccardi & Schiff issued a draft Part 3 of the

EAF for the Board of Trustees' consideration. This draft was not made available to the public on the Village's website.

119. On September 8,2009, the Village Planning Board held its regularly scheduled

meeting. According to the minutes of the meeting, HBDC Chairperson Kieran Murray attended the meeting and made a presentation about the proposed Harmon Rezoning Law and the HBDC August 2008 Zoning Recommendations Report. The minutes indicate that not every Planning Board member had time to review the draft EAF Part 3 prior to the meeting. See Planning Board Meeting Minutes 9-8-09, Exhibit 22.

120. On September 22, 2009, the Planning Board held its regularly scheduled

meeting and again discussed the proposed Harmon Rezoning Law-july version.

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According to the minutes of the meeting, Planning Board members expressed numerous concerns regarding the draft EAF Part 3 and wanted to meet with Saccardi & Schiff so that the consultants could "defend" their report. The Chair of the Planning Board also was concerned that they had not met the 60-day deadline for filing a report under Village Code § 230-180. See Planning Board Minutes 9-22-09, Exhibit 22; Village Code § 230-180, Exhibit 4.

121. On or about September 24, 2009, the Board of Trustees held a public work

session. On information and belief, the Board considered substantial revisions to the proposed law. On information and belief, no minutes of the September 24,2009 work session were created.

122. On or about Friday, October 2,2009, the Board of Trustees caused to be

distributed to the public its agenda for the following Monday's regular Board of Trustees meeting, which included a substantially revised version of the Harmon Rezoning Law (the "Harmon Rezoning Law-October version") and a proposed resolution scheduling a public hearing on the law for October 16, 2009. The proposed revisions included: a) increasing the number of parcels that would be subject to the Harmon Rezoning Law from 36 to 49; b) reducing the parking requirements per dwelling unit from two parking spaces to one parking space, although if dwelling units were larger than one bedroom, an additional parking space would be required for each additional bedroom c) eliminating "shared parking;" i.e., commercial parking requirements would not be credited with any parking spaces required for residential use; d) eliminating the requirement that retail uses be subject to special permit. A copy of the Harmon Rezoning Law-October version is submitted as Exhibit 26.

33

123. The new parcels included 5 parcels on Croton Point Avenue, which were part

of the original Harmon Gateway District. They also included 5 parcels on nearby Wayne Street that were never part of the Harmon Gateway District and were subsequently deleted in yet another revision of the law in November. Finally, 3 small parcels on South Riverside A venue that were never part of the Harmon Gateway District were also added.

124. The Harmon Gateway District, as amended by the Harmon Rezoning Law-

October version, was within 500 feet of a state road (Route 9). On information and belief, neither the Harmon Rezoning Law-October version nor the EAF Part 3, nor the final version of the Harmon Rezoning Law, prior to passage, were sent to the County Board for review, in violation of NY General Municipal Law § 239-m.

125. On information and belief, neither the Harmon Rezoning Law-October

version, nor the EAF Part 3, were sent to the Waterfront Revitalization Committee, in violation of Village Code § 225-6, even though many of the new parcels added had scenic views of the Hudson.

126. Although the Harmon Rezoning Law-October version added 13 parcels to the

Harmon Gateway District and thus revised the Village Zoning Map, on information and belief, the Harmon Rezoning Law-October version was not referred to the Village Planning Board, as required under Village Code § 230-180.

127. The October 5, 2009 Village Board Meeting agenda contained a proposed

reso!ution scheduling a public hearing on the Harmon Rezoning Law-October version on October 19, 2009 - a) even though the substantially revised law had not been referred to the County Board, Village Planning Board, and Waterfront Advisory Committee; b) even though no EAF Part 3 had been adopted by the Board nor made available to the public; and c) even though no analysis had been done of the impact

34

of the addition of the 13 parcels, the less stringent parking requirements, or the removal of the special permit requirement for retail use.

128. The Village Board held its regularly scheduled meeting on October 5,2009.

During citizen participation, several citizens asked that the public hearing on the Harmon Rezoning Law be postponed. A Planning Board member asked that he be given at least one week to review a revised EAF Part 3 before the public hearing. The Mayor said the Planning Board would be given "adequate" time to review the ~AF Part 3. Although certain Village Board members appeared reluctant, after Trustee Olver insisted the public hearing be postponed "as a matter of trust," the Village Board agreed to postpone the public hearing until November 2,2009, as long as the revised EAF Part 3 was completed at least twoweeks prior to that date. Another Trustee advised the public to rely on the Village website for information about the Harmon Rezoning Law, rather than rumor. See Village Board Meeting Minutes 10-5-09, Exhibit 14, see also webcast of meeting available at

http://www .crotononhudson-

ny.gov/Public Documents/CrotonHudsonNY TrustMin/index.

129. The Planning Board met at its next regularly scheduled meeting on October

13,2009. The Village Attorney attended as well. Chairperson Chris Kehoe asked if a new version of the Harmon Rezoning Law had been issued, to which the Village Attorney said yes. The Planning Board Chair stated that the 60 day period to issue a report "had long since passed." In fact, because the Village Board failed to refer to the Planning Board the Harmon Rezoning Law-October version, which contained new proposed amendments to the Zoning Map, the 60-day period to begin a report had not yet begun. See Village Code § 230-180, Exhibit 4.

35

130. By October 13, 2009, the Planning Board had apparently received a copy of a

revised EAF Part 3, which discussed the impacts of the October revisions to the Harmon Rezoning Law. According to the Planning Board Meeting Minutes 10-13- 09, the Planning Board had many concerns and questions about the revised EAF Part 3, and resolved to write a memorandum to the Village Board so as not to "totally bypass the Planning Board's formal memorandum to the Village Board in response to their request for a recommendation." See Planning Board Meeting Minutes 10- 13-09, Exhibit 22.

The EAF PART 3 Is Finalized and Adopted by the Board

131. A revised EAF Part 3 by Saccardi & Schiff dated October 15, 2009 was

posted to the Village website on or about Friday, October 16,2009. Excerpts from the narrative section of the revised EAF Part 3 are submitted as Exhibit 27 ("EAF Narrative").

132. The Board of Trustees adopted the revised EAF Part 3 on Monday, October

19,2009.

133. The EAF Part 3 purports to analyze four specific impacts identified to some

extent in the EAF Parts 1 and 2: a) land use and zoning; b) aesthetic resources; c) traffic and parking; and d) growth and character of the community.

134. As discussed more fully in the accompanying legal brief, the EAF Part 3 is an

internally inconsistent, flawed analysis that, at best, addresses only the most superficial aspects of each identified impact.

135. Because the proposed action was a zoning change rather than specific

proposed development, the EAF Part 3 identified three development/build-out scenarios and assigned likelihood to each. EAF Narrative, pp. 18-35, Exhibit 27.

36

136. With respect to land use and zoning, the EAF Part 3 concluded that the "most

likely" level of "near-term" build-out from the Proposed Action ("Scenario 1")

would be limited to redevelopment of only 8 of the 49 parcels to the maximum

permitted, and full occupancy of a 9th parcel, and no build-out at all on the remaining

40 parcels. No definition of "near-term" was provided. This is in stark contrast to

the findings made by the Village Board for the 2004 Gateway Legislation that most

of the Gateway District parcels were not fully built out and had further room for

expansion under the considerably more onerous restrictions of the 2004 Gateway

Legislation. See ~ 57, supra. It is also inconsistent with the HBDC's Property

Utilization Study, which found that various parcels not included in the "most likely"

scenario could be built out to a FAR less than 0.8 but higher than the 2004 Gateway.

Legislation restrictions and still accommodate the parking requirements. See

Property Utilization Study, p. 2-3. 5

137. No explanation was provided in the EAF Part 3 as to why only 8 of the 49

parcels were likely to be redeveloped. The EAF Part 3 did mention that the 8

parcels were "vacant" or "underutilized" but these terms were not defined. All but 2

of the 8 parcels had structures on them; and the owner of the unquestionably vacant

parcels (Parcels 26-27) publicly announced an interest in building a structure for a

use that would not be permitted under the Harmon Rezoning Law. One of the 8

parcels has a thriving restaurant business. (Umami-Parcel Z), Another two parcels

are currently being remodeled pursuant to the law as it existed before the Harmon

Rezoning Law (former Riverside Four restaurant-Parcels 3-4). Another 2 parcels are

5 The Village Board used the same numbers to identify parcels in the EAF as the HBDC did in the Property Utilization Study. The parcels included in Scenario I are: Parcel 29 (Nappy's), 8-9 (Former Croton Dodge), 3- 4 (Former Riverside Four), 2 (Urnaml), 26-2? (vacant former car Jot), and 12 (empty storefront with 2 apartments overhead; formerly Warren Koch).

37

currently under review by the Village Planning Board for possible re-opening as a

motor vehicle repair shop/vintage car dealership (former Croton Dodge-parcels 8-9).

138. On the other hand, there are many parcels of the remaining 40 that appear to

be equally "underutilized" or redevelopable that were not included in Scenario 1.

The Property Utilization Study identifies some of them: Parcels 11,29,30-31 and 33

"could accommodate an FAR that would exceed 0.6," and Parcels 13,20-22,23-25

and 28 "could possibly achieve a 0.8 FAR if the design of their parking areas were

improved or they combined with adjacent parcels." See Property Utilization Study,

pp. 2-3, Exhibit 8. Parcel 19 contains a small one-story structure, currently vacant,

with a large rear parking lot; yet it is not included in Scenario 1.

139. In addition, the HBDC August 2008 Zoning Recommendations Report clearly

suggests that providing density (i.e. increased FAR) incentives, as the Harmon

Rezoning Law does, will make smaller lots that are constrained by parking

restrictions more attractive to abutting larger lots for combination:

Some parcels as currently configured lack street frontage width or have not individual likely access for rear parking, without the right to access an adjoining parcel. Should this set of zoning recommendations be adopted, such parcels can certainly be developed, as-of-right, under the current 0.4 or 0.5 FAR, depending whether they are currently in the 2004 Gateway or not. However, the parcels tend to be ones that are smaller and often abut larger parcels that have adequate street frontage or rear access. Hence, the effect of the density incentives, if adopted, may make these undersized side lot parcels more valuable to combine with adjoining parcels for redevelopment. See HBDC August 2008 Zoning Recommendations Report, p. 27, Exhibit 9.

Scenario 1 does not take such combinations into account.

140. The 5 parcels on Croton Point Avenue added to the Harmon Rezoning Law in

October were not included in the Property Utilization Study. The EAF Part 3

conclusorily states that the 13 parcels added in October 2009 to the Harmon

Rezoning Law had only "small amount of potential development area" and therefore

38

potential development of them would not be significant. Yet an addition on one

group of them (Block 2, Lots 18-20) is occurring right now. Moreover, these

parcels, as part of the original Harmon Gateway District, were deemed to have

development potential a mere 5 years prior under a more restrictive FAR. See, 57

supra.

141. Notwithstanding the flaws identified above, the entire Scenario 1, 2 and 3

analysis is flawed because it fails to take into account that every single building in

the Harmon Gateway District can now simply convert all but 50% of its first floor to

dwelling units as of right. Prior to enactment of the Harmon Rezoning Law, the first

floor had to be 100% commercial. The Village Board simply never identified, much

less took a hard look at, the impacts associated with removing the special

requirement for mixed use and allowing 50% of the first floor to be residential.

Thus, while the Village Board attempted to identify the impacts of possible

increased development, it never examined the impacts of simple conversion of

existing commercial space to residential space, which is now possible as of right

under the Harmon Rezoning Law as long as the parcel owner does not exceed the

FAR that existed prior to the Harmon Rezoning Law and meets the front facade

(60% glass) and parking requirements. (To take advantage of the increased FAR of

the Harmon Rezoning Law, the parcel owner must meet setback requirements.)

Among other potential impacts, this could have a dramatic impact on school

enrollment with no corresponding increase in tax revenues.

142. With respect to land use and zoning, the EAF Part 3 states:

One of the primary intents of the gateway ordinance (approved in 2004) was to encourage development that is appropriate to the small-scale character of the village. This intent is still valid for the proposed amendments for the South Riverside/Harmon area.

39

To the extent this statement means that the small-scale of the 2004 Gateway

Legislation is consistent with the Harmon Rezoning Law, it is false, as the

development permitted under the Hannon Rezoning Law is denser and bulkier, allows

a third story, and is likely to be taller and/or more massive than the small-scale

development deemed appropriate by the 2004 Gateway Legislation.

143. With respect to land use and zoning, the EAF Part 3 fails to take a hard look at

the fact that the Hannon Rezoning Law expands the use prohibitions of the 2004

Gateway Legislation to additional parcels on South Riverside A venue. In 2004, the

Village Board identified this very impact as a basis for issuing a Positive

Declaration:

Certain uses will be prohibited, such as fast-food restaurants, commercial parking lots and automobile dealerships. While any such existing uses will be permitted as prior non-conforming uses, the prohibition will prevent the expansion of such existing uses. This restriction may have an economic impact on the uses that are made non-conforming, but not to the extent that it changes the existing use of the property or eliminates all economic value. See 2004 Gateway Legislation Positive Declaration, p. 4, Exhibit 28.

There is no reason why this impact should not have been considered in 2009, other

than to further evade the requirement of issuing a positive declaration. Indeed, on

information and belief, the owner of Parcels 8-9 had a site plan application pending

before the Planning Board for a motor vehicle service station with a vintage car

dealership accessory use when the Hannon Rezoning Law was passed.

144. With respect to Aesthetic Resources, the EAF Part 3 states that "Some views

to the Hudson River are available in a few places along South Riverside, but wide

open views to the river are primarily blocked by existing buildings." EAF Narrative,

p. 36, Exhibit 27. In fact, many views are available, particularly in the winter, from

the 49 parcels depending on where one is situated on the parcels. A few examples of

such views just at street level are submitted as Exhibit 20. As previously noted, the

40

Village L WRP recognizes the "unparalleled views" available from South Riverside

Avenue, and Trustee GalleIli attested to the views available from Parcel 25 in the

Exxon canopy litigation. See ~ 85 supra. No mention is made of views available

from adjacent streets Young Avenue and Wayne Street. No analysis is made of

whether any views will be obstructed by construction of bulkier three story

buildings.

145. With respect to Aesthetic Resources, the EAF Part 3 misleadingly states that

"The building height is not proposed to be changed from that in the existing code,

therefore that aspect of the streetscape will not be impacted beyond what could be

constructed today," see EAF Narrative, p. 36, Exhibit 27, and [t]he proposed

amendments are intended to keep the scale of new development within existing

maximums." ld. These statements ignore the fact that, although the maximum

building height remains unchanged at 35 feet, the two-story limitation (as well as the

FAR restrictions) in C~2 districts made it extremely impractical to build a 35-foot

high commercial building, unless one had a need for 17-foot high ceilings. This is

evidenced by the fact that most of the structures in the proposed district are only one

or two stories high and nowhere near 35 feet. See EAF Narrative, p. 36, Exhibit 27.

The EAF Part 3 admits that "the new development described in Scenario 1 would

likely comprise 3 story (with maximum height 35 feet) buildings on the vacant and

underutiIized sites." See EAF Narrative, p. 37, Exhibit 27. Not only would such

development be a major change to the current streetscape, but it would have high

impact on the existing single family homes on Young Avenue and Wayne Street

adjacent to them, see EAF Narrative, p. 34, Exhibit 27, as well as other nearby

,

properties, many of which have views of the Harmon Gateway District's streetscape

and some of which have river views.

41

146. With respect to Aesthetic Resources, the EAF Part 3 falsely states that "[t]he

proposed amendments are intended to keep the scale of new development within existing maximums." See EAF Narrative, p. 37, Exhibit 27. Clearly this is erroneous. Because the proposed Harmon Rezoning Law doubled the permissible FAR for mixed use buildings from .4 to .8, and permitted a third floor, the proposed amendments intended to permit development that exceeded existing maximums.

147. With respect to Aesthetic Resources, the EAF Part 3 failed to address the

impact of bulkier and denser buildings on the appearance of streets cape, the impairment of Hudson River views, and visual and noise impacts to adjacent residential property owners.

148. With respect to Aesthetic Resources, the EAF Part 3 states that the 2004

Gateway Legislation's "landscaping, sidewalk improvements, etc." were intended to create a more attractive setting for the gateway area to the Van Cortlandt Manor, and the Harmon Rezoning Law is intended to enhance the Harmon area visually and "are estimated to create a positive impact on the neighborhood and the entrance to the historic site." Omitted from this statement is the fact that the reduced FAR was also considered to contribute to the positive impact on Van Cortlandt Manor. See DOElS, p. 31, Exhibit 5. There is no corresponding discussion of the impact that the increased FAR allowed by the Harmon Rezoning Law will have on Van Cortlandt Manor. Moreover, none of the parcels deemed likely to be redeveloped under Scenario 1 are near the entrance to Van Cortlandt Manor, or would be passed by anyone travelling between the Van Cortlandt Manor exit on Route 9 and the entrance to Van Cortlandt Manor. However, the parcels that are located along such a route may now convert their properties to mixed use as of right. There is no discussion or

42

reasoned elaboration of whether this will have a positive or negative impact on Van Cortlandt Manor in the EAF Part 3.

149. With respect to Aesthetic Resources, the EAF Part 3 never even mentioned the

Historic Harmon Sales Office, despite concern expressed throughout 2009 by the Croton Historical Society and the Village Historian. See ~~ 91-92 supra.

150. With respect to Parking, the EAF Part 3 falsely states that "the residential

parking ratio in the proposed zoning (1 space per unit plus 1 additional space for each additional bedroom in excess of one) would be a sufficient minimum zoning standard for the range of uses anticipated, with '[mal reviews subject to site plan approval." The ratio constituted a reduction in the parking requirements under both C-2 zoning and the 2004 Gateway Legislation.

151. The ratio of 1 space per dwelling unit (plus 1 additional space for each

additional bedroom in excess of one) was below the ratio recommended by the REA Group, the consultants who analyzed the potential parking and traffic impacts of the Harmon Rezoning Law. The RBA Group used a mix of retail, restaurant and office space to "reflect prevailing parking conditions in the Village." The RBA Group recommended that the parking requirement for dwelling units be increased to 1.5, regardless ofthe number of bedrooms, because otherwise, the Harmon Rezoning Law would provide fewer parking spaces than predicted demand. See Harmon Zoning Amendments Parking Study Amendment October 2009 Prepared by RBA ("Parking Study") at Conclusion; see also Tables 1 and 2. A copy of the Parking Study is submitted as Exhibit 29.

152. The Parking Study recommendation was made despite an erroneous

assumption that "current zoning codes were reasonable" for parking and that Harmon's restaurants should be downgraded from "quality" to "high turnover" to

43

generate lower numbers for the amount of parking spaces required. See Parking

Study, Exhibit 29. Yet parking spillover from local Harmon Gateway District

restaurant Umami was specifically noted by the Planning Board at its September 22,

2009 meeting. See Planning Board Meeting Minutes 9-22-09, Exhibit 22.

153. As will be seen below, the sufficiency ofthe parking requirements under the

Harmon Rezoning Law was also questioned by the Village Planning Board. See ~

200, infra, and challenged by residents at the public hearing see ~ 205, infra.

154. With respect to Traffic and Parking, the EAF Part 3 did not consider the

special needs of the Harmon Fire Station, which is adjacent to the Harmon Gateway

District, not just for emergency responses to fires but for training sessions. The

strain on the Harmon Fire Station's resources was raised at the public hearing on

November 2, 2009. See Village Board Meeting Minutes 11-2-09, Exhibit 14.

155. Even the HBDC August 2008 Zoning Recommendations Report notes the

inadequate parking in the Harmon Gateway District:

The role of parking is critical. The committee was committed to develop ways to contain all the needed parking within the footprint of the business district and to avoid parking from spilling over into residential side streets - as happens now. See HBDC August 2008 Zoning Recommendations Report, p. 17, Exhibit 9 . (emphasis added).

The HBDC recommended that the parking for residential units remain at two spaces

per dwelling unit Id

156. With respect to Parking, the EAF Part 3 failed to address the needs of the

Harmon Fire Station, irrationally assumed that parking was presently sufficient in the

Harmon area, and arbitrarily and capriciously assumed that a reduction to one

parking spot per dwelling unit was sufficient when its consultant said it was not.

157. With respect to Traffic, the EAF Part 3 states:

Due to the proximity of the train station to the proposed study area, there is a steady stream of traffic along S. Riverside Avenue during the weekday AM

44

and PM peak periods. In addition, there are numerous pedestrians who walk to, from and through the study area during these periods. Despite the surge of traffic during the peak commuter periods, traffic volumes along the local streets are generally light because most vehicles travel along Us. 9, rather than the local streets. See EAF Narrative, p. 38, Exhibit 27.

158. Several other recent Village documents are quite inconsistent with this claim

of "generally light" traffic volumes.

159. In 2008, when applying for a $1.2 million grant to build a bicycle/pedestrian

path and install traffic lights along these same streets, the Village described the

traffic as follows:

Traffic data obtained for the Croton Harmon Parking Facility Vehicular, Bicycle and Pedestrian Study, from which this project's proposed improvements were developed, indicate that the train station's 3,400 passengers per day generate around 5,600 entering and exiting vehicles per weekday - approximately 25 percent of which arrive/depart during the AMIPM peak commuter hours and-50 percent of which arrive/depart during the AMlPM peak periods. This highly concentrated and directional flow of traffic, along a primarily uncontrolledfacility and in such close proximity to the US.9 northbound and southbound ramps, results in extreme congestion and poor pedestrian and bicycle, as well as vehicular, operations during the peak periods.

During the weekday AM period (the significantly worse of the two commuter peaks), local drivers commute to the train station by traveling south on S. Riverside Avenue and then west on Croton Point Avenue to Veterans Plaza. Due to a southbound right-turn overlap at the traffic signal at Croton Point Avenue and S. Riverside Avenue, there is a constant stream of vehicles approaching the train station along Croton Point Avenue. These vehicles operate free-flow to the train station, since there are no traffic signals or stop control for the vehicles between S. Riverside Avenue and Veterans Plaza ...

The frustration and urgency of drivers on the ramps during the weekday AM peak period result in unsafe maneuvers - pulling out in front of vehicles when gaps are inadequate and disregarding pedestrians or bicyclists for whom the drivers should yield. (In fact, based on 2005 through 2008 accident data, the project segment and all intersections within have accident rates higher than the applicable NYSDOT averages.) To address these issues in part, the Village of Croton on Hudson currently assigns a traffic control officer ... and a crossing guard ... The primary goal of both personnel is to facilitate pedestrian

crossings at these locations... ( emphasis added)

See Transportation Grant Application, pp. 1-2, Exhibit 1] .

45

160. The grant application further stated that "along S. Riverside Avenue where the

roadway is too narrow for a bicycle/pedestrian path, signs alerting motorists to share

the road with bicyclists will be installed." See id. at p. 3. On information and belief,

two of the parcels in the "most likely" Scenario 1 are located on this "too narrow"

section of S. Riverside Avenue.

161. In or about April 2009, the Village Board of Trustees adopted a

"Bicycle/Pedestrian Master Plan." Excerpts from the Bicycle/Pedestrian Master Plan

are submitted as Exhibit 30.

162. The Bicycle/Pedestrian Master Plan described traffic on the two streets in the

Harmon Gateway District as follows:

•

Village residents benefit from express train service on Metro-North, although regional transit access also brings regional traffic to our local roadways. As a result, the station area has unique challenges related to pedestrian and bicycle safety that can potentially be addressed through roadway improvements, enforcement, and local policies related to parking.

One of the hot spots for conflicts between pedestrians and motorists is the southbound Route 9 highway exit ramp, where expanded crossing guard coverage has assured pedestrian safety during certain peak commutation periods. Other crossings of South Riverside Avenue at Benedict Avenue and Croton Point Avenue experience heavy traffic that can be intimidating for those accessing shopping at Shoprite Plaza, or the Harmon residential area. Bicycle Master Plan, Exhibit 30, p. 2 (emphasis added).

163. Less recently but still pertinent, Trustee Gallelli in the gas station canopy

lawsuit described these same streets as follows:

[The former Exxon gas station] "is located along one of the most heavily travelled routes in the entire Village. It occupies a corner lot that fronts on both South Riverside Avenue and Croton Point Avenue. This is the route from virtually all parts of the Village, and from neighboring communities to the east as well, to the Croton-Harmon railroad station, one of the largest and busiest commuter railroad stations in the County of Westchester and a major Amtrak station as well. South Riverside Avenue continues southward a few hundred yards to the principal shopping center in the Village ... " See Gallelli Affidavit, p.3, Exhibit 19. (emphasis added)

46

164. With respect to Traffic and Parking, the EAF Part 3 failed to consider the

impact of school bus traffic during the morning rush hour. On information and belief, school bus stops are not presently a significant issue in the Harmon Gateway District because the only dwelling units between the corner of S. Riverside and Benedict A venues and the train station are located in a building that has access to a bus stop on Wayne Street. However, should development of residential units occur even as predicted in Scenario 1, there could be bus stops occurring at the "southbound right-turn overlap" on South Riverside Avenue, as well as other locations on South Riverside and Croton Point A venues, during the peak morning rush hour.

165. With respect to Traffic, the EAF Part 3 failed to examine a) how the addition

of traffic infrastructure changes and the creation of a bicycle/pedestrian path in and adjacent to the Harmon Gateway District would impact parking and traffic in the Harmon Gateway District, b) the impact of increased vehicular traffic from potential construction of a parking deck at the nearby train station (see ~73 supra); and c) the impact of increased school bus traffic due to development of four times the amount of residential space in a previously primarily commercial area during peak morning rush hour.

166. With respect to Growth and Character of Community, the EAF Part 3

analyzed the impact to schools, taxes and community services.

167. With respect to schools impact, the EAF Part 3 states that there are 9 school

age children presently living in the South Riverside/Harmon study area (at four separate addresses) ranging from kindergarten to 8th grade. See EAF Narrative, p. 42, Exhibit 27. According to the EAF Part 3, the present residential space available in the study area is 9716 square feet. See EAF Narrative, Table 9, p. 44, Exhibit 27.

47

168. The EAF Part 3 projects student population likely to be created by the Harmon

Rezoning Law by multiplying the number of projected dwelling units by a "multiplier" that varies depending on whether the dwelling unit is a one bedroom apartment or a two bedroom apartment, and whether the apartment rents for more than or less than $1000. See id. at p.43.

169. The Village Board applied an artificially low number of dwelling units to this

formula (# of dwelling units x demographic multiplier = # of projected students) to produce a lower number of projected students.

170. The EAF Part 3 states that under the most likely scenario (Scenario 1), the

build-out will create 42,000 new square feet of residential space. See id. at p. 17 (residential units assumed to be 1000 square feet) and at p. 18 (42 residential units predicted under Scenario 1). According to the HBDC, there are presently approximately 30 apartments in the 9716 square feet of residential space in the same area, which averages out to 324 square feet per apartment. See "F AQ-Hannon Zoning Change Recommendations," at p. 4, Exhibit 10. There is no rationale provided in the EAF Part 3 for assuming that new apartments would be more than triple the square footage of apartments that presently exist in the same area.

171. The use of an arbitrary and irrationally large size for apartments (lDOO square

feet vs. the 324 square foot average size that presently exists) creates an artificially low number of1ikely dwelling units in the 42,000 square feet of projected dwelling space and therefore creates an artificially low number of projected students.

172. The composition of the apartments (1 bedroom vs. 2 bedroom) also affects the

projected number of students because the 1 bedroom multipliers appear to be smaller than the comparable 2 bedroom multipliers." Thus, when using the 1

6 The EAF Part 3 does not provide the actual multipliers used for 2-bedroom apartments.

48

bedroom multipliers, the EAF Part 3 projected there would only be 4-12 new

students (if the 42,000 square feet were comprised of 100% l-bedroom apartments).

If the 42000 square feet were comprised of 50% l-bedroom 1000 square foot

apartments and 50% 2 bedroom 1000 square foot apartments, the projection was 7-

18 new students. See EAF Narrative, p. 43, Exhibit 27.

173. As will be seen infra, the Village Board ignored the student projections for a

combination of one and two bedroom apartments and based the Negative Declaration

on the projections for 100% I-bedroom apartments.

174. Thus, it is the Village Board's position that adding four times the amount of

residential space (adding approximately 40,000 square feet compared to the 9700

square feet that is there now) will produce about the same number of students that

presently live in the Harmon Gateway District. This is patently unreasonable.

175. With respect to the impact on taxes, the amount of new taxes projected to be

generated under Scenario 1 is provided in the EAF Part 3, Table 9, p. 44, which is

duplicated (footnotes included) below:

Existing Scenario # 18 Scenario #2 Scenario #3
Condition'
Commercial J\rea (sJEL 53,817 9,498 28,996 28,115
Residential Units NJ\ 42 125 126
ResidentialIsf) 9.716 42,000 125,000 126,000
Total Area (sf) 63,533 51,498 153,996 154,115
J\ verage property tax per sf $2.29 $2.29 $2.29 $2.29
(08-09 rates)
Annual Total: Village $145,590.47 117,930.42 $352,650.84 $352,923.35
Property Tax Revenue ($263,420
total)
Annual Total: School Tax $247,075 $200,327.22 $599,044.44 $599,507.35
Revenue" (447,402
total) 7 From Harmon Zoning Change Recommendations (HBDC, August 2008)

8 Scenario #1 assumes redevelopment on 9 parcels of36, and was combined with revenues for existing development to compare with full build-out scenarios 2 and 3.

9 School tax rate extrapolated from HBDC report

49

176. The total taxes to be generated by Scenario #1 (highlighted) are dramatically

overstated because they simply add the tax revenue that will be generated from the

redeveloped parcels to the present existing tax revenue generated by all parcels in

their present condition. In other words, the Table does not subtract the amount of

square fOotage and associated UlX revenue thatlhe redelleloped propert}! will

replace.

177. The present square footage of the 9 parcels deemed likely to be redeveloped in

Scenario 1 is taken from the Village property tax cards'? and is listed below:

Parcel

Commercial s.f

Residential s.f.

2 (Umami)

3-4 (former Riverside Four) 8-9 (Croton Dodge)

12 (Warren Koch)

26-27 (vacant lot)

29 (Nappv)

1110 1725 10225 1909 o 1283

932

1202

Totals

16252

2134

See property tax sheets for each of the 9 parcels submitted as Exhibit 31. Using the

same tax rates used in Table 9, the associated tax revenue generated from the 9

parcels is $42,103.94 in Village Property Tax Revenue and $71,521.54 in school

taxes.' I These amounts needs to be subtracted from the "total" tax revenues shown in

Table 9 because they will be replaced, not added to, the tax revenue generated by the

development generated under Scenario 1. For example, the 12304 square foot

building projected to be put up on Parcels 8-9 (Croton Dodge), see EAF Narrative, p.

19 Table 3A, Exhibit 27 (2304 commercial space + 10 1000 s.f. residential units) will

10 The property tax cards do not break out the residential and commercial space. However, only parcels 3-4 and 12 have second floors, which, on information and belief, are used exclusively for residential dwelling units.

11 These figures are calculated as follows: Total square feet in present existing condition = 18386

'(16252+2134). Village tax = $42,103.94 (18386 * $2.29 used in Table 9). School tax = $71,521.54 (18386*$3.89). $3.89 is extrapolated from table 9 as school tax revenue totals divided by square footage for each scenario comes out to $3.89 per square foot.

50

replace the 10225 structure that is there now. Therefore, adding the future tax

revenue of the Croton Dodge property to the existing condition, when the existing

condition includes what the Croton Dodge property currently pays in taxes, produces

an inflated "total tax revenues" number.

178. Thus, a correct Table 9, just for the "most likely" scenario, would appear as

follows:

2

3

4

5

Existing Existing Projected Net Outcome if
Condition for Condition of Condition of Change Parcels Deemed
All Rezoned Parcels Parcels Most Likely to
Parcels Deemed Deemed (column 3 be Redeveloped
"most "most -column are redeveloped
likely" to be likely" to be 2) (column 1 +
redeveloped redeveloped column 4)
Commercia 53,817 16,252 9,498 (6754) 47063
I Area
Residential 30 3 42 39 69
Units ,
Residential 9-,716 2,134 42,000 39,866 49,582
(sf)
Total Area 63,533 18,386 51,498 33,112 96,645
(sf)
Average $2.29 $2.29 $2.29 $2.29 $2.29
prop tax
per Sq. Ft.
(08-09
rates)
Annual $145,490.57 42,103.94 $117,930.42 75,826.48 221,317.05
Total:
Village
Property
Tax
Revenue
Annual $247,075 71,521.54 $200,327.22 128,805.68 $375,880.68
Total:
School Tax
Revenue 51

179. As demonstrated by the table above, using the Village Board's numbers,

Scenario I will only produce $128,805.68 of incremental new school tax revenue,

not the $200,327.22 stated in the EAF Part 3. Even if the Village Board's $14,310

cost-per-student calculation were correct (and it is not, as shown below), a gap

between school tax revenue and school costs will be created if the new student

population exceeds 9 students. ($128,805.68/14,310 cost-per-student=9).

180. Given that even the EAF Part 3 projects, however irrationally, Scenario 1 will

generate from 4 to 12 students (if only 1 bedrooms are constructed) or 7 to 18

students (if the units are 50% one bedrooms and 50% two bedrooms), the statement

that "It is anticipated that the school tax revenue in all redevelopment scenarios

would offset the costs of potential new students" is erroneous.

181. As demonstrated by the table above, using the Village Board's numbers,

Scenario 1 will produce $75,826.48 of incremental Village tax revenue, not the

$117,930.42 stated in the EAF Part 3.

182. This exact problem was raised by the Planning Board in its memorandum of

October 28,2009 to the Board of Trustees, which states:

It was not clear to the Board how the Annual Total: School Tax Revenue as shown in Table 9 (Tax Estimates) for Scenario #1 was calculated and how it relates to the existing condition, i.e. should it be added to the existing condition total? See Planning Board Memorandum 10-28-09, submitted as Exhibit 32.

183. The error was again identified in comments submitted by Ms. Roseanne

Schuyler, who also spoke at the public hearing on additional issues. See comments

of Roseanne Schuyler, submitted as Exhibit 33.

184. The error was ignored by the Village Board.

185. The current cost per student for Croton-Harmon school district students is

$23,900. See Negative Declaration, p. 8, submitted as Exhibit 34. The EAF Part 3

52

uses $14,500 as a cost figure per new student. See EAF Narrative, p. 45, Exhibit 27, the validity of which will be discussed infra.

186. The cost-per-student calculation also is irrational, arbitrary and capricious.

The $14,500 figure initially used in the EAF Part 3 for cost-per-student was based on a New York State Department of Education calculator that determines each school district's out of district tuition rate. 'See EAF Narrative, p. 45 n.3, Exhibit 27. Because the formula is intended not to saddle the out-of-district pupil with expenses he will not benefit from and will pay to his own school district via local taxes, the formula deducts the district's transportation, adult education, community and special needs expenses from the tuition to be charged an out-of-district pupil. See 8 NYCRR § 174.2. Because any families living in the Harmon Gateway District will enjoy all of the benefits deducted from the formula (because they live in the school district), use of the out-of-district tuition rate was utterly inappropriate.

187. After a citizen pointed out at the public hearing that use of the out-of-district

tuition rate was inappropriate, because of the deduction of some of the expenses pointed out above and the high cost of special need students that are not included in the formula, see Village Board Meeting Minutes 11-2-09, Exhibit 14, the Village Board could have added some or all of those expenses back in to arrive at a more appropriate figure. This would unquestionably have produced a higher cost per student.

188. The Village Board chose instead to calculate cost-per-student based on an

entirely new formula, which it announced to the public via email at5 p.m. Friday, November 13, through dissemination of the proposed Negative Declaration it would ultimately issue on Monday, November 16, 2009. See ~~ 241-245 infra.

53

189. With respect to community services, the EAF Part 3 "analyzed" the impact on

community services, such as water, sewer, police, fire and waste disposal services,

by stating:

"Based on the good condition and capacity of the village infrastructure in this area, some build out with the new zoning amendments is not likely to raise costs for infrastructure or services ... [mixed use development] could bring some incremental level of impact, gradually over a period oftime, if maximum theoretical build-out were achieved [which is unlikely] .. .In all cases, infrastructure needs will be looked at for individual projects as site plans for those applications are reviewed. EAF Narrative, p. 45-46, Exhibit 27.

190. Specifically, with respect to sewer services, the EAF Part 3 cited only to the

August 26, 2008 Harmon Zoning Change Recommendations, which state, that

"recent infrastructure improvements can support a full district build-out under the

recommended zoning changes ... The sanitary service line is a large main running

under South Riverside which has ample capacity." See HBDC August 2008 Zoning

Recommendations Report, p. 34, Exhibit 9 (emphasis added). No citation is

provided as to where the HBDC got this information. In addition, the Harmon

Rezoning Law was expanded to include 5 parcels along Croton Point Avenue since

the HBDC August 2008 Zoning Recommendations Report was issued, some of

which, on information and belief, are on septic, and are downhill from the Riverside

Avenue sewer line. There is no analysis of whether these parcels would need or

want to hook up to a sewer line if developed further or converted to mixed use and

whether the Village would incur any costs as a result.

191. On information and belief, South Riverside Avenue (south of Benedict

Avenue) and Croton Point Avenues are served by an old six-inch water main with no

redundancy. On information and belief, if the water main breaks, there is no back

up water source for its users until it is repaired. No analysis was done of the impact

54

of additional residential dwelling units in the Harmon Gateway District south of Benedict Avenue, including development of parcels 26-27 included in Scenario 1.

192. Therefore, the finding that the Harmon Rezoning Law is not likely to raise

infrastructure costs is unfounded.

193. In addition to all of the above deficiencies, the EAF Part 3 did an inadequate

analysis ofthe impact of adding 13 additional parcels to the Harmon Rezoning Law.

194. The September draft of the EAF Part 3 analyzed impacts surrounding the 36

parcels that were included in the Harmon Rezoning Law-july version. The final EAF Part 3 addresses the addition of the 13 parcels in the Harmon Rezoning LawOctober version by adding a small section to its analysis of each impact, when deemed appropriate. See EAF Narrative, p. 8, Exhibit 27.

195. Because the 5 Wayne Street parcels were eventually deleted from the Hannon

Rezoning Law, this Petition will not address the many deficiencies in the analysis related to them.

196. The analysis of the impact of adding the 5 parcels on Croton Point Avenue is

woefully inadequate. The EAF Part 3 claims that these 5 parcels are already developed with structures; therefore "it is not anticipated that potential impacts of redevelopment on these lots would be significant." See EAF Narrative, p. 18, Exhibit 27. Many parcels in the Harmon Gateway District are developed with structures; that does not determine whether they are developable. See ~~ 57, 136- 141 supra. None of these additional parcels on Croton Point Avenue were part of the Property Utilization Study and no comparable assessment of what their redevelopment potential actually is has been provided. Moreover, their present uses could now more easily change from commercial to residential, as discussed supra.

55

197. In assessing the impact on Aesthetic Resources, the EAF Part 3 simply ignores

the parcels on Croton Point Avenue and their views of the Hudson River and nearby

marshes. The EAF Part 3 also ignores whether the creation of up to three story

structures on these properties will alter the streetscape of this heavily travelled road

and impact the views of residents on adjacent Wayne Street andlor South Riverside

Avenue.

198. In assessing the impact on traffic and parking of the October amendments to

the Harmon Rezoning Law, the RBA consultants assumed that the number of

residential units would remain unchanged; their focus was on the changed parking

requirements of the Harmon Rezoning Law-October version. See Parking Study,

Introduction, Exhibit 29. Therefore, there was no consideration of the impact of

redevelopment of the Croton Point Avenue parcels on traffic and parking.

199. There was no analysis whatsoever of the impact on schools, taxes and

community services of the addition of the Croton Point Avenue parcels.

The Planning Board Has Issues With the Proposed Law

200. Within two weeks after the issuance of the EAF Part 3 and the Harmon

Rezoning Law October Version, the Planning Board Chairperson Chris Kehoe wrote

a memorandum to the Village Board that stated:

"The majority of the members of the Planning Board support the proposed rezoning however there were several issues that came up during our discussion that the Board wishes to bring to the Village Board's attention." See Planning Board Memorandum, 10-28-09, Exhibit 32.

The memorandum asked, inter alia, why the additional 13 parcels were not analyzed

in the September draft of the EAF Part 3, the sufficiency of the parking requirements,

whether permitting 50% residential on the first floor was desirable, and whether the

school tax revenues for scenario #1 in Table 9 should have been added to the

"existing condition" number. Chairperson Kehoe's October 28, 2009 memorandum

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did not satisfy the requirements of Village Code §230-l80, which detail specific

findings that must be made in the Planning Board's report.v' None of the required

findings were made in the October 28, 2009 memorandum.

201. Despite the Board of Trustees' admonition to rely on the Village website for

accurate information, on information and belief, the October 28,2009 Planning

Board memorandum was never posted to the Village website. Nor, on information

and belief, was its existence otherwise made publicly known before the Public

Hearing.

202. On information and belief, the Planning Board's October 28,2009

memorandum was only available as oflate November in hard copy at the Village

Engineer's office, and as of March 9, 2010, has not been posted to the Village

website.

203. On information and belief, the Village Board never publicly met to discuss the

concerns raised in the Planning Board letter prior to the public hearing, not

publicized them in any way.

A Public Hearing Is Held

204. The Village Board held a public hearing on the proposed law on November 2,

2009. 37 people spoke, subject to a 5-minute time limit. See Village Board Meeting

Minutes 11-2-09, Exhibit 14.

205. Although there were some supporters of the Harmon Rezoning Law, the

majority of speakers opposed it and raised the following concerns:

12 Among the determinations the Planning Board was required to make are: Whether adequate public school facilities and other public services exist to serve the needs of any additional residences, whether the proposed change is in accord with any existing or proposed plans in the vicinity, the effect of the proposed amendment upon the growth of the Village as envisaged by the Comprehensive Plan, whether the change is consistent with the aims and . principles embodied in the chapter as to the particular districts concerned. See Village Code

§ 230-180, Exhibit 4.

57

• Parking. According to speakers, insufficient parking already existed in Hannon; adding apartments so close to the train station would exacerbate the problem because commuters would leave their cars home during the day; parking needs of volunteer fire and emergency services personnel (firehouse and EMS stations are housed in adjacent Wayne Street parcels) were not taken into account, nor were potential snowstorm parking issues.

• Schools & Taxes. Several speakers expressed concern about the impact of the rezoning on school enrollment and the related issue of school taxes.

• Traffic. Speakers raised concerns about increased traffic and congestion, and one speaker (fire department volunteer) was concerned that emergency response times of the adjacent firehouse and EMC facility would be negatively impacted.

• Scenic Impact. One speaker asserted that the Village's answer to question 11 on the EAF [Part 2 - the Village left blank "Project components that will result in the elimination, or significant screening, of scenic views known to be more important to the area"] with respect to scenic view elimination was inadequate as a matter of law. This speaker also reminded the Board of its prior inconsistent position in the gas station canopy litigation.

• Precedent-setting Impact. Speakers questioned whether rezoning would be required in other commercial areas of the Village.

• Infrastructure. One speaker raised a concern about how the sewerage and water systems would be able to handle the new load.

• Accuracy of studies. A few speakers were concerned about the accuracy of the facts and assumptions underlying the various consultants' reports prepared in connection with the proposed law.

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• Neighborhood quality-of-life impact. Two speakers who lived in Harmon

raised concerns about quality-of-life issues.

206. The public hearing was closed after the last citizen spoke on November 2,

2009.

The Village Board PubJjciy Deliberates ove}' Comments from tbe Public Hearing for Ten Miuufes and Decides to Make One Revisiog to the Law

207. On November 9, 2009, the Village Board held a work session, which was their

first public meeting following the public hearing. The first item on the agenda was

the Harmon Rezoning Law. The Village Board spent approximately 10 minutes

discussing the public hearing a?d discussed only 3 issues.

208. First, Trustee Restuccia said she did not know why the 5 parcels on Wayne

Street had been added to the law, and the remaining Board members immediately

agreed that those 5 parcels should be removed.

209. Second, the trustees agreed that they should ask the consultants to verify that

the number they were using for school cost per student was correct.

210. Third, Trustee Murtaugh asked if the EAF Part 3 covered the question of

parking for employees of the commercial establishments, and another trustee assured

him that it did.

211, Trustee Gallelli said she was happy that everyone got a chance to speak at the

public hearing but that all of the other issues raised at the public hearing were

covered in the EAF Part 3. No one disagreed with her, even though citizens, as well

as the Planning Board, specifically challenged various facts and assumptions

presented in the EAF Part 3. The Village Board then moved on to the next item on

their work session agenda.

The Village Board Issues a Negative Declaration Withont Public Deliberation. ISsu_es a Finding of Consistency with tbe LWRP. and Votes in tbeNew Law Immediately Thereafter.

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212. On Friday, November 13, 2009, at approximately 5 p.m., the Village Board

caused to be distributed to the public through its agenda for the Board of Trustees

November 16,2009 meeting what would be the fmal version of the Harmon

Rezoning Law. The major revision from the Harmon Rezoning Law-October

version was the deletion of the 5 parcels on Wayne Street. A copy ofthe resolution

with attachment is submitted as Exhibit 35.

213. On November 13,2009, at approximately 5 p.m., the Village also caused to be

distributed to the public via the November 16, 2009 agenda a proposed resolution

issuing a Negative Declaration and L WRP consistency determination in connection

with the Harmon Rezoning Law ("Negative Declaration"). A copy of the

resolution, is submitted as Exhibit 36. The proposed Negative Declaration was

attached to the resolution, and is submitted herewith as Exhibit 34.

214. Specifically with regard to the L WRP, the resolution states

The Village Board of the Village of Croton-on-Hudson hereby determ ines that the adoption of [the Harmon Rezoning, La w] complies with and is consistent with the policies. standards and conditions set forth in tbe Village's L WRP for the reasons set forth in the Environmental Assessment Form and Negative Declaration which have been issued in connection with the proposed Local Law, all of which are incorporated herein by reference, and in accordance with the recommendation of the Village's Waterfront Advisory Committee."

215. Neither the EAF nor the Negative Declaration contain any references to the

L WRP, other than the EAF Part 3' s attachment of the Waterfront Advisory

Committee's 2-paragraph Preliminary Recommendation of Consistency 8-6-09

(Exhibit 25) and the CAP (Exhibit 24) and the Negative Declaration's mention,

without elaboration, of same. Therefore, there are no "reasons set forth in the

Environmental Assessment Form and Negative Declaration" as to why the Village

Board found that the Harmon Rezoning Law is consistent with the L WRP.

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216. The Harmon Rezoning Law is inconsistent with the Village LWRP because it

incentivizes the development of buildings at double the previous FAR scale and allows a third story on parcels on South Riverside Avenue and Croton Point Avenue which will potentially obstruct Hudson River views, in contravention of Policies 25A and 25C of the Village LWRP, which seeks to protect those views.

217. The Harmon Rezoning Law is inconsistent with the Village L WRP because it

does not protect or enhance the Historic Harmon Sales Building, but rather makes its redevelopment more likely, in contravention of Policy 23 of the LWRP.

218. On November 16,2009, the Village Board voted 4-0 (1 abstention) in favor of

the resolution issuing the Negative Declaration and determining that the Harmon Rezoning Law was consistent with the L WRP, as distributed on November 13,

2009.

219. The Village Board's determination that the Harmon Rezoning Law was

consistent with the L WRP was irrational, arbitrary and capricious.

220. The Board of Trustees' only public discussion of the Negative Declaration

occurred immediately prior to the vote and was limited to brief comments by the Mayor and Trustees Gallelli and Restuccia. Trustee Gallelli pointed out that the zoning change was good for the Village because it would increase the commercial tax base. See Village Board Meeting Minutes 11-16-09, Exhibit 14. Only the Mayor made any comment on the actual substance of the Negative Declaration, which concerned the number used for cost per student. According to the Mayor, the number was rechecked and it turned out that the original amount used ($14,500 per student) overestimated the actual cost per student. See id.; see also webcast of 11- 16-09 Village Board meeting, available at http://www.crotononhudsonny.goy/Public Docorhents/CmtonHudsonNY TrustMi,n/2009/index.

61

221. Most of the Negative Declaration is simply a cut and paste of the EAF Part 3

and thus contains the same defects. To the extent there is additional material,

additional defects can be found in it.

222. The Negative Declaration states that "the overall intent of the proposed

zoning amendments is to encourage commercial development activity and improve

the walkability of the area." (Negative Declaration, p. 3) However, the net effect of

the "most likely" scenario envisioned by the EAF Part 3 is to reduce available

commercial space by approximately 6800 square feet and to increase residential

development by approximately 40,000 square feet. See ~ 178 (corrected Table 9)

supra.

223. The Negative Declaration states that the Board of Trustees has reviewed

"each [of the potential impact areas identified in the EAF part 2, with the exception of those [ discussed below] in light of the criteria set forth in 617.7(c) of the SEQR regulations and determined that potential impacts would be small or non-existent ... These areas of potential impact listed in the EAF Part 2 include: impact on land, impact on water, impact on air, impact on plants and animals, impact on agricultural land resources, impacts on historic and archeological resources, impact on open space and recreation, impact on Critical Environmental Areas, impact on energy, noise and odor impacts, and impact on public health."

There is no known evidence that the Board of Trustees publicly reviewed these

items in any meaningful way. As detailed in ~~ 84-92 above, the Board of Trustees

made erroneous statements as to some of these items in the EAF Part 2.

224. The Negative Declaration further states that "The proposed action will not

have a significant adverse environmental impact on Land Use and Zoning."

Negative Declaration, p. 4, Exhibit 34.

225. The Negative Declaration finds the "most likely" Scenario 1 level of build-out

described in the EAF Part 3 to be "realistic," see id., p. 4. The Negative

Declaration is therefore subject to the same flaws as the EAF; including: a) there

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is no reasoned elaboration as to why this scenario is "most likely;" b) it is limited

to the "near term;" c) other parcels seem equally likely to be redeveloped; and d) it

fails to consider the impact of permitting conversion to mixed use, including the

new 50% of first floor, as of right. See generally ~~ 136-141 supra.

226. To support the finding that the proposed action will not have a significant

adverse environmental impact on Land Use and Zoning, the Negative Declaration

goes on to state:

Existing land uses adjacent to the parcels which will now be added to the Harmon/South Riverside Gateway Area will still be adjacent to a C-2 zoning district. However, with the gateway overlay extended, the specific gateway regulations will apply to [all] of the parcels described in the law. This means that the more stringent landscape, buffer and screening requirements required in the gateway overlay area would be required of any new mixed use development, and this should be a beneficial impact to existing single family residences adjacent to the C-2 zone and also in the gateway area.

Designating gateway overlays and forming those districts was one of the goals outlined in the Village's 2003 Comprehensive Plan. The potential impacts of the Harmon/South Riverside Gateway District were evaluated in the DGEIS prepared by the Village. This proposed action, amending the adopted regulations, is proposed to refine and expand those existing gateway regulations to encourage improvements, commercial activity and vitality to the Hannon area. The proposed action is consistent with the objectives of the Comprehensive Plan, and the Harmon Business Development Committee (HBDC). Accordingly, the Board finds that no significant adverse impacts to land use will result. Negative Declaration, p. 4-5, Exhibit 34.

227. The above quotation from the Negative Declaration ignores the fact that the a

major objective of the 2003 Comprehensive Plan and 2004 Gateway Legislation was

to preserve small scale and historic character, and the Harmon Rezoning Law

conflicts with this objective.

228. The above quotation from the Negative Declaration ignores the fact that the

.2004 Gateway Legislation decreased the permissible FAR to 0.4 for mixed use

buildings to preserve the historic and small scale character of the Village, consistent

with the objectives of the Comprehensive Plan. See ~~ 55-57 supra.

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229. The above quotation from the Negative Declaration ignores the fact that

increasing the permissible FAR and permitting a third story will have negative

impacts on single family residences adjacent to the Harmon Gateway District that

cannot be significantly mitigated with a landscape buffer.

230. The sentence in the above quotation "The potential impacts of the Harmon

South Riverside Gateway District were evaluated in the DGEIS prepared by the

Village" is seriously misleading in that it fails to disclose that many of the impacts

discussed in the DOEIS were related to the REDUCED DENSITY that the 2004

Gateway Legislation mandated. See ~~ 54-58 supra. Because the Harmon

Rezoning Law increases density, the impacts of the density-reducing 2004 Gateway

Legislation cannot be grafted on to the analysis of the Harmon Rezoning Law.

231. With respect to the 5 additional parcels added on Croton Point Avenue, the

Negative Declaration states:

The 5 parcels on Croton Point Avenue are already in the Gateway district. Therefore, the proposed zoning regulations would apply to these parcels. The lots are already developed with primary structures (one contractor's office, one deli and one multi-family structure) and the potential impact of their redevelopment with the proposed regulations was reviewed by the Board after their addition to the list. Since these parcels are developed, they are not considered to have significant additional redevelopment potential within the proposed regulations, and therefore potential impacts of the additional 5 parcels on Croton Point Avenue are not found to be significant. Negative Declaration, p. 6. Exhibit 34.

232. As seen in the 2004 Gateway SEQRA Findings, see ~ 57 supra, and the

Property Utilization Report, see ~~ 137-139 supra, the fact that a property is

developed to some extent is not a basis for assuming that the property would not be

further developed. In the case of the 5 parcels on Croton Point Avenue, these were

part of the original 2004 Harmon Gateway District and were included in the finding

that those parcels were underdeveloped even under the more onerous 2004 Gateway

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Legislation. See ~ 57, supra. Moreover, there is no reasoned elaboration for why these parcels could not be converted to mixed use and why that would not result in any significant impact.

233. For the reasons stated in ~~ 224-232, supra, the finding that the Harmon

Rezoning Law will not have a significant adverse effect on Land Use and Zoning is irrational, arbitrary and capricious.

234. The Negative Declaration further states that the "proposed action will not have

a significant adverse environmental impact on Aesthetic Resources." To support this statement, the fmdings state that the "proposed zoning amendments will keep the scale of new development within existing maximums for building height. There is no change ... to the maximum height permitted ... " while ignoring that the Harmon Rezoning Law allows a previously not allowed third story, and that the permissible FAR for mixed use buildings is doubled. Therefore the likelihood that the existing maximum for building height will actually be reached has increased substantially. Moreover, the fact that, regardless of whether the building height is increased, the bulk of buildings can be larger, is nowhere addressed in the Negative Declaration. Thus, the Negative Declaration fails to address impact on streetscape, or aesthetic impact of the changed streetscape on adjacent property owners. Further, the Negative Declaration ignores any potential impacts on the vistas of the Hudson

River. See generally ~~ 144-149, supra.

235. The Negative Declaration further states, without any "reasoned elaboration,"

or other support in the record, that the Harmon Rezoning Law is "designed to create a positive aesthetic impact" on national historic landmark Van Cortlandt Manor's entrance. Negative Declaration, p. 6, Exhibit 34. Because the 2004 Gateway Legislation's reduced FAR was one basis for claiming that the Gateway Legislation

65

would have a positive effect on Van Cortlandt Manor, see ~ 61, supra, the 2009 claim that the increased FAR was "designed to create a positive aesthetic impact" needed to be explained. Impact on the Historic Harmon Sales Building was not mentioned in the Negative Declaration.

236. Therefore, for the reasons stated in ~~ 234-235, the conclusion that the

proposed action will not have a significant adverse environmental impact on Aesthetic Resources is irrational, arbitrary and capricious.

237. The Negative Declaration further states that "the proposed action will not have

a significant adverse environmental impact on Traffic and Parking." To support this finding, the Negative Declaration states "traffic volumes along the local streets [to the nearby train station] are generally light because most vehicles travel along U.S. 9, rather than the local streets." As pointed out in ~~ 157-165 supra, this finding paints quite a different picture from what the Village said in its application for a $1.2 million federal transportation grant in 2008 and in its 2009 Bicycle Pedestrian Master Plan, fails to account for potential increased traffic from the train station due to a possible parking deck, fails to account for traffic issues arising from school bus stops along the key artery to the train station during the morning rush hour, and fails to account for how the construction and existence of a pedestrianlbicycle path along the Harmon Gateway District will impact traffic flows. Thus, the Negative Declaration's finding that there will not be a potential significant adverse impact on Traffic is irrational, arbitrary and capricious.

238. To support its finding that there would be no adverse impacts to parking, the

Board of Trustees relied on the "analysis" provided in the EAF Part 3 and repeated from it that "the [required parking ratio] is a sufficient minimum zoning standard for the range of uses anticipated." Negative Declaration, p. 7, Exhibit 34. As pointed

66

out in ~~ 150-152, supra, the Parking Study attached to the EAF Part 3 recommended a higher parking requirement that what is provided in the Harmon Rezoning Law, and noted that under Scenario 1, there would not be sufficient parking under the Harmon Rezoning Law. Moreover, citizens and the Village Planning Board questioned the sufficiency of the parking requirements, as it was a decrease from the existing requirements and many, including the ~DC, felt parking in the Harmon Gateway District was insufficient without any new development. See ~~ 154-155,200,205. The Board of Trustees' "reasoned elaboration" for this finding was that 1) applicants seeking redevelopment would have to demonstrate how they would meet parking requirements, which solves nothing; and 2) mitigating measures could be taken if impacts were identified for individual applications, which is improper segmentation, and 3) the consultants' predicted parking shortage for Scenario 1 was based on an "unlikely build-out with all restaurants and one bedroom units in the mixed use buildings." See Negative Declaration, p. 7, Exhibit 34. In fact, the predicted parking shortage was not based on all restaurants, and 100% onebedroom units is exactly the "unrealistic assumption" the Board of Trustees used to project only 4 to 12 students were likely under Scenario 1, see ~~ 151, 172 supra. Thus, the Board of Trustee's conclusion that there would be no adverse impacts to Parking is irrational, arbitrary and capricious.

239. The Negative Declaration further states that "The proposed action will not

have a significant adverse environmental impact on the Growth and Character of Community." Negative Declaration, p. 8, Exhibit 34.

240. To support this finding, the Negative Declaration states "As detailed in the

EAF Part 3 Report, approximately 4-12 new school age children are anticipated in the gateway area with the "Likely Development" scenario # 1 given the likely type of

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units and bedroom composition." Id. at p. 8. As explained in ~~ 169-172 supra, the

number of 4-12 is projected only if the 42,000 square feet expected to be generated in

Scenario 1 is comprised sole [y of 1000 square foot one bedroom apartments. The

Village Board gave no reasoned elaboration of why this was likely, and claimed

such an assumption was unrealistic when doing its parking analysis. The EAF

Part 3 projected a range of 4-18 students if the apartments were split between one

and two bedroom dwelling units. See -,r 172, supra.

241. The Negative Declaration further finds that "it is anticipated that the school tax

revenue would offset the costs of potential new students to the district ... " See

Negative Declaration, p. 8, Exhibit 34. To support this finding, the Village Board at

the last minute used another methodology to calculate cost-per-student from what

was used in the EAF Part 3, in response to comments made at the public hearing.

See Negative Declaration, p. 8, Exhibit 34.

242. The formula for the new calculation of cost per student was:

Total School Budget-

Capital & Administrative Costs x

# of Students

Total Revenues-

Non Tax Revenues = Cost per student

Total Revenues

See Negative Declaration, p. 8, Exhibit 34.

243. The Negative Declaration deducted capital and administrative costs because it

claimed that "capital and administrative costs ... would not be affected by the

increase of a modest number of additional students." Id. However, the Negative

Declaration did not identify what constituted capital and administrative costs, so

there was no way of knowing whether they would be affected by a modest number of

additional students.l '

13 On information and belief, the Croton-Harmon School District's budget was not available on its website until quite recently (well after issuance of the Negative Declaration and enactment of the Harmon Rezoning Law).

68

244. Nor did the Negative Declaration explain whether there was any basis for

assuming that the "Non Tax Revenues" which were deducted to project a lower cost-per-student would remain relatively constant. In fact, according to the School District's website, a significant portion of the 2009-2010 $6.88 million non-tax revenues used in the Negative Declaration to reduce cost-per-student comes from sources that are non-recurring or likely to decline. These include a $1 million back payment of building aid, federal stimulus dollars that will end in 2010-11, a $500, 000 "not sustainable" increase in use of the district's fund balance, and a declining trend in non-state-aid non-property tax revenue. See "Building the Budget 2010- 2011" PowerPoint Presentation pp. 6-8, submitted as Exhibit 37, available at the Croton-Harmon School District's website.

245. The resulting cost-per-student under the new formula was $14,310, which was

lower than the discredited $14,500 number and yet another reason further elaboration was warranted.

246. As pointed out in ~~ 176-184 supra, the projected school tax revenue for the

"most likely" level of build-out is faulty because it failed to subtract out the present tax revenue the parcels likely to be redeveloped are currently generating.

247. Because the Board of Trustees used a faulty analysis for all three components

of its school enrollment and school tax projections, resulting in understating enrollment, overstating revenue, and understating costs, its conclusion that there would be no significant adverse impacts to school enrollments or taxes is irrational, arbitrary and capricious.

248. The Negative Declaration further states that "no significant adverse impacts to

community services or infrastructure will result." Negative Declaration, p. 9, Exhibit 34. To support this finding, the Negative Declaration notes that the Harmon

69

Gateway District "is an established commercial district, with water, sewer, police, fire and waste disposal services available at the present time and in good condition ... Therefore, aside from potential costs of new students described above, the projected amount of redevelopment with the new zoning amendments and Scenario 1 is not likely to raise costs for infrastructure or services." Id.

249. As pointed out in ~ 190 supra, the conclusion that the present sewer line on S.

Riverside A venue will support 42 new dwelling units has no sound articulated basis. In addition, as indicated in ~ 191, supra, there is no basis for the conclusion that the six inch water main serving parcels south of Benedict Avenue will not be impacted by additional dwelling units. Thus, the finding that no significant adverse impacts to community services or infrastructure will result is irrational, arbitrary and capricious.

250. In comments right before the vote on the Harmon Rezoning Law-November

Version, the Mayor announced that the HEDC would now be interested in looking at other business districts in the village, which h~ viewed as "absolutely critical" to "weave a more complete fabric." He further stated that the reason the Harmon Gateway District was tackled first, as opposed to other commercial districts in the Village, was in part due to the receipt of the $1.2 million grant for pedestrian/traffic improvements in the Harmon Gateway District area, and that this should be looked at as an "entire fabric." See Minutes of 11-16-2009 Village Board meeting, p. 5, Exhibit 14; see also webcast of Meeting, available at http://www.crotononhudson-

n y. go v IPu b [ic Documents/CrotonHudsonNY TrustM Ln!20 09/i ndex (Mayor's comments start at 1 :08:08).

251. Following the resolution issuing the Negative Declaration and consistency

determination, and comments on the Harmon Rezoning Law, a vote was taken on the

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resolution adopting the Harmon Rezoning Law on November 16,2009. The resolution passed 4-0 (Trustee Olver was absent).

252. Because the Village Board verbally agreed to make revisions to the Harmon

Rezoning Law one week before its enactment, the Harmon Rezoning Law-November Version could not have been available in its final form to the Village Board for the 7 days exclusive of Sunday required by Municipal Home Rule Law 20 (4) prior to the taking of the vote.

253. Because the Harmon Rezoning Law abolished the power of the Board of

Trustees, who are all elected officers, to determine whether special permits should be granted for mixed use and retail use in the Harmon Gateway District, it was subject to mandatory referendum. See NY Municipal Home Rule Law § 23(2)(f). No such referendum was held.

254. On information and belief, following the enactment of the Harmon Rezoning

Law, the Village invited all property owners in the Harmon Gateway District to a presentation held on December 8,2009. According to the Village, property owners were shown presentation materials, a copy of which are submitted as Exhibit 38.

The materials showed, inter alia, how two properties in the Harmon Gateway District could benefit from the Harmon Rezoning Law. See id. at second p. 2. One ofthe two properties had been included in the EAF Part 3 "most likely" to be redeveloped scenario. The other one - the "Former Century 2] Building" (Parcels 30-31) was not. According to the slide, even though the Former Century 21 Building property had never been included in the Village's "most likely" Scenario 1, it could redevelop to more than double the square footage of its present configuration. See

id. at second page 2.

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255. On information and belief, on December 18, 2009, the Village sent a letter to

"Valued Property and Business Owners" in the Harmon Gateway District enclosing

the presentation materials from the December 8, 2009 meeting and providing an

update on its "support." A copy of the Jetter is submitted as Exhibit 39. Among the

items of support listed were "Approved Gateway Improvements grant that will

greatly increase the potential traffic to the Harmon business district." (emphasis

added). A potential great increase in potential traffic to the Harmon business traffic

was never mentioned in the EAF or the Negative Declaration.

FIRST CAUSE OF ACTION

(Village Board-Violation of SEQRA-Failure to Take a Hard Look at Potential Significant Adverse Impacts)

256. Petitioners repeat and re-allege Paragraphs 1 through 255 as if fully set forth

herein.

257. The Village Board acted arbitrarily and capriciously and in violation of

SEQRA when it issued a Negative Declaration in connection with the Harmon

Rezoning Law. The Village Board conducted an insufficient environmental review.

258. In order for the Village Board, the lead agency, to determine whether an

"action may include the potential for at least one significant adverse environmental

impact," SEQRA mandates that an agency take a "hard look" at the potential impacts

on the environment of such proposed action. 6 NYCRR § 617.7(a)(emphasis added);

6 NYCRR § 617.2.

259. The mandatory "hard look" for making a determination of significance

requires the lead agency identify the relevant environmental impacts, thoroughly

analyze and take a hard look at these potential impacts, and provide a reasoned

written elaboration of why the proposed action mayor may not cause significant

adverse environmental impacts.

72

260. In approving the Negative Declaration, the Village Board ignored the well-

established low threshold triggering the requirement to prepare a full EIS under

SEQRA for an Unlisted Action, namely, whether the Harmon Rezoning Law "may"

include the potential for at least one significant adverse environmental impact.

261. The Village Board failed to comply with its substantive obligation to take a

"hard look" at significant potential adverse impacts, which the Harmon Rezoning

Law might cause, including, but not limited to, impacts relating to land use, zoning

(including impacts relating to removal of special permit requirements and conflict

with Village comprehensive plan), aesthetic resources (including scenic views,

archaeological and historic resources, streetscape), parking, traffic, community

character, school enrollment, sewer, infrastructure, and safety.

262. The Village Board's failure to prepare an Environmental Impact Statement

("EIS") for the Hannon Rezoning Law was arbitrary, capricious and an abuse of

discretion, and the Negative Declaration issued for the Harmon Rezoning Law must

be vacated.

SECOND CAUSE OF ACTION

(Village Board-Violation of SEQRA-Arbitrary and Capricious Determination of Significance for Harmon Rezoning Law)

263. Petitioners repeat and re-allege Paragraphs 1 through 262 as iffully set forth

herein.

264. The Village Board acted arbitrarily and capriciously and in violation of

SEQRA when it issued a Negative Declaration in connection with the Harmon

Rezoning Law.

265. The potential adverse environmental impacts expected to result from the

Harmon Rezoning Law, including, but not limited to, impacts relating to land use,

zoning (including removal of special permit requirements and conflict with Village

73

comprehensive plan) aesthetic resources (including scenic views, historic resources

and streetscape), parking, traffic, community character, school enrollment, sewer,

infrastructure, and safety, surpass the "low threshold" triggering the requirement for

comprehensive environmental review through an EIS. It was erroneous for the

Village Board not to recognize these potential impacts.

266. The Village Board's determination that none of the aforementioned potential

impacts from the Harmon Rezoning Law might be significant and its failure to

prepare an EIS was arbitrary, capricious, and an abuse of discretion, and the

Negative Declaration issued for the Harmon Rezoning Law must be vacated.

TIllRD CAUSE OF ACTION

(Village Board-Violation of SEQRA-Failure to Make A Reasoned Elaboration)

267. Petitioners repeat and re-allege Paragraphs 1 through 266 as if fully set forth

herein.

268. The Village Board acted arbitrarily and capriciously and in violation of

SEQRA when it issued a Negative Declaration in connection with the Harmon

Rezoning Law.

269. Prior to taking action on a proposal that has been the subject of a negative

declaration, the lead agency must make a "reasoned elaboration" of the basis of its

environmental determination concerning the proposed action in written form and

providing reference to any supporting documentation. 6 NYCRR § 617.7(b)(4).

270. The Village Board failed to make a reasoned elaboration supporting its

Negative Declaration.

271. The Village Board's failure to make a reasoned elaboration to support its

determination of environmental non-significance was arbitrary, capricious, and an

abuse of discretion, and the Negative Declaration issued for the Harmon Rezoning

Law must be vacated.

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FOURTH CAUSE OF ACTION

(Village Board-Violation of SEQRA-Improper Segmentation)

272. Petitioners repeat and re-allege Paragraphs 1 through 271 as if fully set forth

herein.

273. The Village Board acted arbitrarily and capriciously and in violation of

SEQRA when it issued a Negative Declaration for the Harmon Rezoning Law.

274. "Segmentation means the division of the environmental review of an action

such that various activities or stages are addressed under this Part as though they

were independent, unrelated activities, needing individual determinations of

significance." 6 NYCRR § 617.2 (ag).

275. During the environmental review process, there were several other related

actions of which the Village Board was aware: (a) construction ofbicycle/pedestrian

path and traffic infrastructure along South Riverside and Croton Point Avenues; (b)

potential development of parking deck at Croton-Harmon train station; and (c)

"revitalization" of other business districts in the Village through potential rezoning.

276. The Village Board's failure to undertake a combined review of these actions

even in a generic sense in conjunction with the enactment of the Harmon Rezoning

Law, or to explain why it was not doing so under 6 NYCRR § 617.3 (g), constitutes

illegal segmentation in violation of SEQRA, mandating annulment of the Negative

Declaration.

FIFTH CAUSE OF ACTION

(Village Board- Violation of SEQRA Procedures Law)

277. Petitioners repeat and re-allege Paragraphs 1 though 276 as if fully set forth

herein.

278. SEQRA requires due deliberation and consideration of the EAF and the

Negative Declaration.

75

279. The Village Board violated the provisions of SEQRA, Part 617, by rushing

through the process of reviewing the Final EAF Part 3 prepared by its consultant and

adopting it, holding a public hearing, revising the law, issuing a Negative

Declaration and adopting the Harmon Rezoning Law in just over six weeks.

280. The Village Board violated the provisions of SEQRA, Part 617, by approving,

without discussion of its contents (except for one small component related to school

costs), deliberation or consideration in public session, the Negative Declaration.

The Village Board's actions leading up to issuance of the Negative Declaration did

not constitute the careful, deliberate review mandated by SEQRA and the Negative

Declaration must be annulled accordingly.

SIXTH CAUSE OF ACTION

(Waterfront Advisory Committee-Violation of ViUage Code § 225 et seq)

281. Petitioners repeat and re-allege Paragraphs 1 though 280 as if fully set forth

herein.

282. The Waterfront Advisory Committee acted arbitrarily and capriciously and in

violation of Village Code § 225 et seq when it issued the Preliminary

Recommendation of Consistency 8-6-09.

283. Section § 225 et seq of the Village Code requires the Waterfront Advisory

Committee to review proposed Village legislation for consistency with the Village

L WRP policy standards and conditions.

284. The public deliberations of the Waterfront Advisory Committee as reflected in

the minutes of its August 5, 2009 meeting reflect a flawed and illogical analysis of

the impacts of the Harmon Rezoning Law on Village L WRP policy standards and

conditions.

76

285. The Waterfront Advisory Committee's Preliminary Recommendation of

Consistency 8-6-09 based on its August 5, 2009 review of the Harmon Rezoning

Law was arbitrary and capricious, and must be annulled.

SEVENTH CAUSE OF ACTION

(Village Board-Violation of Village Code § 225 et seq Procedures)

286. Petitioners repeat and re-allege Paragraphs 1 though 285 as iffully set forth

herein.

287. The Village Board issued a substantially revised version of the Harmon

Rezoning Law on October 2,2009. It never referred the revised version of the law to

the Waterfront Advisory Committee.

288. Village Code § 225-6(E) provides that if the lead agency issues a Negative

Declaration on a proposed action, the proposed action is referred back to the

Waterfront Advisory Committee for a final recommendation. Certain findings are

required to be made by the lead agency if the Waterfront Advisory Committee makes

a final recommendation of consistency other than that the action is consistent with

the LWRP standards and conditions. Village Code § 225-6(K). The Committee has

20 days from issuance of the Negative Declaration to make its final recommendation.

The Village Board then makes its finding of consistency, which is a prerequisite for

undertaking an Unlisted Action. Village Code § 225-4.

289. The Village Board violated Village Code § 225 et seq by making its

determination of consistency without following the procedures set forth in the

Village Code § 225 and thus failing to obtain a final recommendation of consistency

from the Waterfront Advisory Committee, as contemplated by the Village Code.

EIGHTH CAUSE OF ACTION

(Village Board-Violation of Village Code § 225 et seq)

77

290. Petitioners repeat and re-allege Paragraphs 1 though 289 as if fully set forth

herein.

291. The Village Board acted arbitrarily and capriciously and in violation of Village

Code § 225 et seq when it issued a determination of consistency with the Village

L WRP policies, standards and conditions.

292. Village Code § 225 et seq required the Village Board to make a determination

of consistency in accordance with the L WRP policy standards and conditions set

forth in Village Code § 225-6(J).

293. The Village Board adopted a resolution making a determination of consistency

with the Village L WRP policies, standards and conditions for reasons stated in the

EAF and Negative Declaration. The EAF and Negative Declaration do not provide

any reasons why the Harmon Rezoning Law is consistent with the Village's L WRP .

policies, standards and conditions.

294. There is no evidence that the Village Board considered the Village L WRP

policies, standards and conditions in conjunction with the Harmon Rezoning Law.

295. The Village Board's determination of consistency with the Village LWRP

policies, standards and conditions is arbitrary and capricious, and must be annulled.

NINTII CAUSE OF ACTION

(Village Board-Violation of Village Code § 230-180)

296. Petitioners repeat and re-allege Paragraphs 1 though 295 as iffully set forth

herein.

297. The Village of Croton-on-Hudson Village Code requires proposed legislation

that amends the Village's Zoning Map or otherwise amends Chapter 230 of the

Village Code to be referred to the Planning Board, which then must issue a report

within 60 days of its next regularly scheduled meeting. The Village Board may not

78

take action on zoning legislation without such a report unless the 60 day period has

expired. Village Code § 230-180.

298. The Village Board's changes to the Harmon Rezoning Law in October 2009

were substantial and included a further proposed amendment of the Zoning Map, as

13 parcels were proposed to be added to the Harmon Gateway District.

299. The Village Board did not refer the revised version ofthe Harmon Rezoning

Law to the Planning Board, in contravention of Village Code § 230-180.

300. The Planning Board never issued the report required under Village Code S

230-180.

301. The Respondent Village Board violated the provisions of Village Code § 230-

180 by failing to refer the Harmon Rezoning Law-October Version to the Village

Planning Board, by scheduling a public hearing prior to the lapse of 60 days from

date of amendment to public hearing (thus not providing the Planning Board

adequate time to prepare the report required under Village Code § 230-180), and by

voting on the Harmon Rezoning Law without such referral and before sufficient time

had passed for the Planning Board to prepare its report.

302. The Harmon Rezoning Law should be annulled and declared void for failure to

comply with Village Code §230-1S0.

TENTH CAUSE OF ACTION

(Village Board-Violation of General Municipal Law § 239-m)

303. Petitioners repeat and re-allege Paragraphs 1 though 302 as if fully set forth

herein.

304. The Village Board enacted the Hannon Rezoning Law in violation of General

Municipal Law § 239-m.

79

305. General Municipal Law § 239-m requires that if any substantive or material

changes are made to a local law after the County Board's review, that the local law

be resubmitted to the County Board for further review.

306. General Municipal Law § 239-m requires that a full statement of the action be

sent to the County Board for review. A full statement of the action includes the

Environmental Assessment Form.

307. Following the County Board's review and comments on the Harmon Rezoning

Law, the Village Board made substantial material changes to the Harmon Rezoning

Law, which required resubmission to the County Board for another review pursuant

to the General Municipal Law.

308. The Village Board failed to submit the revised Harmon Rezoning Law to the

County for further review.

309. The Village Board failed to submit Part 3 of the EAF to the County Board for

review.

310. The Harmon Rezoning Law must be annulled and declared void for failure to

comply with General Municipal Law § 239-m.

ELEVENTH CAUSE OF ACTION

(Village and Village Board-Violation of Municipal Home Rule Law § 23(2)(1))

311. Petitioners repeat and re-allege Paragraphs 1 though 310 as if fully set forth

herein.

312. Municipal Home Rule Law § 23(2)(f) that a mandatory referendum be held

for any local law that "abolishes, transfers or curtails any power of an elective

officer."

313. The Harmon Rezoning Law abolished the power of the Village Board of

Trustees - all elected officers - to grant or deny special penn its for mixed use

80

buildings and retail stores in the Harmon Gateway District, as well as the power to

impose conditions on those permits.

314. The Harmon Rezoning Law was subject to mandatory referendum under the

provisions of Municipal Home Rule Law § 23(2)(f).

315. The Village did not hold a referendum for the Harmon Rezoning Law.

316. The Village violated Municipal Home Rule Law § 23(2)(f) by failing to hold a

mandatory referendum prior to enactment of the Harmon Rezoning Law.

317. The Village Board violated Municipal Home Rule Law § 23(2)(f) by enacting

the .Harmon Rezoning Law without a mandatory referendum.

318. The Harmon Rezoning Law must be annulled and declared void for failure to

comply with Municipal Home Rule Law § 23(2)(f).

TWELFTH CAUSE OF ACTION (Village Board-Violation of Village Law § 7-704)

319. Petitioners repeat and re-allege Paragraphs 1 though 318 as if fully set forth

herein.

320. A zoning amendment must accord with the comprehensive plan of a village.

NY Village Law § 7-704.

321. The comprehensive plan of the Village may be discerned from the 2003

Comprehensive Plan, the 2004 Gateway Legislation and the Village LWRP.

322. The Harmon Rezoning Law conflicts with the comprehensive plan of the

Village.

323. The Harmon Rezoning Law facilitates and incentivizes development of

buildings in substantial excess of the scale contemplated in the comprehensive plan,

permits residential use in substantially greater proportion to commercial use in a

commercial district than contemplated in the comprehensive plan, fails to preserve

the small scale and historical character of the Harmon Gateway District as

81

contemplated in the comprehensive plan, fails to consider the preservation of

historic resources as contemplated in the comprehensive plan, and fails to preserve

scenic views that are highly valued in the comprehensive plan.

324. The Village Board violated Village Law § 7-704 by enacting the Harmon

Rezoning Law, which conflicts with the Village's comprehensive plan.

325. The Harmon Rezoning Law must be annulled and declared void for failure to

comply with Village Law § 7-704.

THIRTEENTH CAUSE OF ACTION

(Village Board and Village-Violation of Municipal Home Rule Law § 20(4)

326. Petitioners repeat and re-allege Paragraphs 1 through 325 as if fully set forth

herein.

327. The Village Board enacted the Harmon Rezoning Law in violation of NY

Municipal Home Rule Law § 20 (4).

328. . Municipal Home Rule Law § 20 (4) mandates that no local law shall be passed

unless it is in final form and on the desks of the legislative body at least seven

calendar days exclusive of Sunday prior to its final passage or mailed to the members

of the legislative body at least ten calendar days prior to final passage.

329. The Harmon Rezoning Law was enacted on November 16,2009.

330. At its November 9, 2009 evening work session, the Village Board decided to

delete 5 parcels from the Harmon Rezoning Law. As a result, the Harmon Rezoning

Law could not have been in its final form and on the desks of the Village Board for

seven calendar days, exclusive of Sunday, prior to passage on November 16, 2009, in

violation of NY Municipal Home Rule Law § 20(4).

331. The Harmon Rezoning Law should be declared void and invalid for violating

Municipal Home Rule Law § 20 (4).

82

WHEREFORE, Petitioners request ajudgment as follows:

(i) annulling and vacating the Village Board's adoption of the Hannon Rezoning Law;

(ii) annulling and vacating the Village Board's finding of environmental nonsignificance under SEQRA for the Hannon Rezoning Law;

(iii) annulling and vacating the Village Board's .determination of consistency under the Village L WRP policy, standards and conditions for the Harmon Rezoning Law;

(iv) annulling and vacating the Village Waterfront Advisory Committee's Preliminary Recommendation of Consistency with the Village L WRP policy, standards and conditions;

(v) declaring the Village Planning Board 10-25-09 Memorandum did not constitute the report required under Village of Croton Village Code § 230-180;

(vi) annulling and vacating any other actions taken by any of the Respondents in reliance upon the Village Board's SEQRA Negative Declaration, the Village Board's L WRP determination of consistency, the Waterfront Advisory Committee's recommendation of consistency, and/or the Village Planning Board's 10-25-09 Memorandum;

(vii) declaring the Harmon Rezoning Law conflicts with the comprehensive plan of the Village,

(viii) declaring the adoption of the Hannon Rezoning Law violates the New York State Municipal Home Rule Law;

(ix) declaring the adoption of the Harmon Rezoning Law violates the New York State General Municipal Law;

83

(x) declaring the adoption of the Hannon Rezoning Law violates Village of Croton

Village Code § 230-180·

(xi) declaring the adoption of the Harmon Rezoning Law violates Village of Croton

Village Code S 225-1 et seq;

(xii) enjoining the Respondents from implementingany of'the provisions of the

Harmon Rezoning Law;

(xiii) declaring the Harmon Rezoning Law null and void;

(xiv) awarding Petitioners the costs and disbursements of this action; and

(xv) granting such other and further relief as this Court deems just and proper.

Dated; March 1 D. 2010 Croton on Hudson. New York

Patricia Moran, Esq.

BY:~4t:£·, 7;~ Patricia Moran

Attorney for Petitioners

49 Penfield Avenue

Croton-on-Hudson, New York 10520 (914) ,827-8278

:84

ATTORNEY'S VERIFICATION

STATE OF NEW YORK )

)ss.:

COUNTY OF WESTCHESTER )

I, the undersigned, am an attorney admitted to practice in the Courts of New York State, and say that:

I am the attorney for the Petitioners. I have read the annexed Verified Petition and Complaint, know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters I believe them to be true. My belief, as to those matters therein not stated upon knowledge, as well as my knowledge, are based upon, inter alia, conversations with Petitioners, as well as employees of the Village and Croton-Harmon School District Department of Transportation, review of materials posted on Village website and received pursuant to FOIL requests, examination of the records of Petitioners, examination of records of Respondent Village of Croton-on-Hudson, attendance at public meetings of the Respondent Village Board of Trustees and/or review of same via webcast provided by the Village of Croton on Hudson, and conversations with property owners in Hannon Gateway District.

I make this affirmation because all of the material allegations of the pleading are within my personal knowledge, as set forth above, except for those allegations set forth under penalty of perjury in Petitioners' Affidavits, which I believe to be true based on conversations with Petitioners and their swearing to same under oath.

Dated: Croton-on-Hudson, New York

March Il) , 2009

85

STATE OF NEW YORK

0;0Uit Coul'ily af

Westchester

Year

Index No.

In the Matter of the Application of

THOMAS SIMONE and HOLLY CROSBIE-FOOTE, Petitioners,

In a Proceeding Pursuant to Article 78 of the CPLR

v.

THE VILLAGE OF CROTON-ON-HUDSON, et al., Respondents

VERIFIED PETITION

Patricia Moran, Esq.

Attorney for Petitioners

49 Penfield Avenue Croton on Hudson, NY 10520 (914) 827-8278

\'

Attorney(s) for

Service of the within is admitted this

day of

., ~ ~ •••• "Joo".~ •• ~~_'. "~.,.I _"" I ~. ~ .

Attorney(s) for

) NOTICE OF ENTRY Please take notice that an

within entitled action on the of the County of

) NOTICE OF SETTLEMENT Please take notice

that an order

of which the within is a copy, was duly granted in the

, and duly entered in the office of the Clerk

day of on the

day of

of which the within is a true copy will be presented for settlement to the Han. one of the judges of the within named Court, at

on the day of

Dated,

Yours, etc.