SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER Jn the Matter of the Apj THOMAS SIMONE and HOLLY CROSBIE-FOOTE, Petitioners, Index No. Ina Proceeding Pursuant to Article 78 of the CPLR Against THE VILLAGE OF CROTON-ON-HUDSON, 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-ON-HUDSON PLANNING BOARD, Chris Kehoe, Vincent Andrews, Frances Allen, Robert Luntz, Mark Aarons, As Its Members, THE VILLAGE OF CROTON-ON-HUDSON WATERFRONT ADVISORY COMMITTEE, Frances Alllen, Robert Luntz, Richard Olver, Demetra Restuecia, Charles Kane, As Its Members, and 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, ZEV NRECA, ZOJA NRECAI, SUNG SING REALTY CORP., J&E SERVICE INC., MAF REALTY LTD., DOMINICK ANTIFEATRO, PATRICIA ANTIFEATRO, JOHN PERILLO, JOSEPH $ 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 SHARMA, KANWA SHARMA, LVM REALTY CORP., CYNTHIA ELDREDGE, and DAJA VIEW REAL ESTATE INC., Respondents, MEMORANDUM OF LAW IN SUPPORT OF VERIFIED PETITIONTABLE OF CONTENTS PRELIMINARY STATEMENT. STATEMENT OF FACTS POINT [- THE VILLAGE FAILED TO COMPLY WITH SEQRA ‘A. The Village Failed to Take a “Hard Look” in the Areas of Impact It Identified 1. Flawed Analysis of Impact on Land Use and Zoning a. Village Creates Implausible “Most Likely Scenario” b. The Harmon Rezoning Law Conflicts with Officially ‘Adopted Land Use Plan and Goals i. 2003 Comprehensive Plan Unquestionably Focuses on Preservation of Small Scale And Historic Character ii, 2004 Gateway Legislation Reduces FAR to Preserve Smalll Scale and Historic Character of Village iii, Village Doubles Permissible FAR in 2009 and Claims Seale Not Affected 2, Flawed Analysis of Impact on Aesthetic Resources a. Impact of Increased Building Scale on Aesthetic Resources Impact on the Hudson River and Other Views Impact on Van Cortlandt Manor |. Impact on Historic Harmon Sales Office Impact on Streetscape Impact on Neighbors 3. Flawed Analysis of Impact on Traffic and a. Impact on Traffic b. Impact on Parking 4, Flawed Analysis of Impact on Growth and Character of the Community a. Projecting the likely number of students b. Tax Projections i, Tax revenues ii, Cost per student . Infrastructure B. The Village Failed to Identify Other Important Impacts 1, The Village Failed to Identify Any Impacts at all From liminating Special Permit Requirements 2. The Village Failed to Identify Impact on Businesses C. ‘The Village Board Engaged in Improper Segmentation D. The Village Board Rushed Through The SEQRA Process B. Conelusion npaes 13 7 18 19 19 2 2 23 24 25 25 28 31 31 33 33 36 38 39 39 41 42 45 46POINT I~ THE WATERFRONT ADVISORY COMMITTEE and VILLAGE, BOARD FAILED TO COMPLY WITH THE VILLAGE’s LOCAL WATERFRONT REVITALIZATION (LWRP) CONSISTENCY REVIEW LAW 47 A. The Waterfront Advisory Committee’s Preliminary Consistency Recommendation Was Irrational, Arbitrary and Capricious B. The Village Board Ignored the Review Requirements of the Local Waterfront Revitalization Program (LWRP) Consistency Review Law C. The Village Board’s Determination of Consistency was Arbitrary And Capricious POINT III - THE VILLAGE BOARD VIOLATED SECTION 230-180 OF THE VILLAGE CODE POINT IV - THE VILLAGE BOARD FAILED TO COMPLY WITH THE COUNTY REFERRAL LAW POINT V—'THE HARMON REZONING LAW WAS SUBJECT TO MANDATORY REFERENDUM POINT VI- THE HARMON REZONING LAW CONFLICTS WITH THE COMPREHENSIVE PLAN OF THE VILLAGE POINT VII -THE HARMON REZONING LAW WAS PASSED IN VIOLATION OF THE MUNICIPAL HOME RULE LAW 7-DAY RULE CONCLUSION 47 30 51 2 58 60 61 64TABLE OF AUTHORITIES CASES Akpan v, Koch, 75 NY 24 561, 570, 555 N.Y.S.2d 16, 20 (1990) . Batavia First v. Town of Batavia, 26 A.D.3d 840, 841, 811 N.Y.S.2d 236, 237 (4" Dept. 2006) Callanan Road Improvement Co. v. Town of Newburgh, 5 A.D.2d 1003, 173 N.Y.S.2d 780 (2d Dept. 1958) . 64 Cannon v. Murphy, 196 A.D.2d 498, 499-500, 600 N.Y.S.2d 965, 967-68 (2d Dept. 1993) Aa Se eens OD Chinese Staff and Workers Association v. City of New York, 68 NY .2d 359, 363-364, 509 N.Y.S.2d 499, 501 1986) .... Citizens Against Retail Spravl v. Giza, 280 A.D.2d 234, 237-238, 222 N.Y 8.24 645, 648-49 (4" Dept. 2001) ... sire : 29 c. 3d 907(A), 781 N.Y.S.2d 623, 2003 WL 23145905 36 Corrini v. Village of Scarsdale, | Mi (Sup. Ct. Westchester Cty. 2003) County of Orange v, Village of Kiryas Joel, 44 A.D.3d 765, 768, 844 N.Y.S.2d 57, 61 (2d Dept. 2007). ; 7 a Farringion Close Condominium v. Village of Southampton, 205 A.D. 2d 623, 626, 613 N.YS.2d 257, 260(2d Dept. 1994), F. Letts & Sons, Inc. v. City of Cortland, 47 Mise. 2d 240, 243, 262 N.Y.S.2d 294, 297 (Sup. CUNY. Cty 1965).. 51,58 Gernait Asphalt Products, Inc. v. Town of Sardinia, 81 N.Y 24 668, 679-680; 642 N.Y.S.2d 164, 171 (1996)... 58,61,62 Ginsburg Development Corp. v. Town Board of Cortlandt, 150 Misc.2d 24, 31-32, 565 N.Y.S.2d 371, 375-76 (Sup. Ct. Westchester Cty. 1990)... Kastan v. Town of Gardiner Town Board, 25 Misc. 3d 1225(A), 2009 WL 3807128 (Sup. Ct. Ulster Cty 2009)...... a AG La Delfa v. Village of Mt. Morris, 213 A.D.2d 1024, 1025, 625 N.Y.S.2d 117, 119 (4! Dept. (4 Dept. 1995), soe] 6,18 Y.8.2d 605 (2d Dept. 60 LCS Realty Co. Inc. v. Village of Roslyn, 273 A.D.2d 474, 710 2000), ereewestassoten sssacainncae aLong Island Pine Barrens Society v. Planning Board of Brookhaven, 80 N.Y.24 500, 513-15, 591 N.Y.S.2d 982, 987-89 1992). serene Munash v. Town Board of East Hampton, 297 A.D.2d 345, 347, 748 N.Y.S.2d 160, 162 (2d Dept. 2002)... 29, 46 MYC New York Marina, L.L.C. v. Town Board of East Hampton, \7 Misc. 34751, 760-61, 842 N.Y.S.2d 899, 907-08 (Sup. Ct. Suffolk County 2007). oon 43-44 Neville v. Koch, 79 N.Y.2d 416, 427-28, 583 N.Y.S.2d 802, 807-808 (1992) New York Archaeological Council v. Town Board of Coxsackie, 177 A.D.2d 923, 925, 576 N.Y.S.2d 680, 682 (3d Dept. 1991 New York Public Interest Research Group v. Giuliani, 228 A.D.2d 216, 644 N.Y.S.2d 38 (1 Dept. 1996)......-+ , Pyramid Co. of Watertown v. Planning Board of Town of Watertown, 24 A.D.34 1312, 1313-1314, 807 N.Y.S. 2d 243, 245 (4! Dept. 2005)... 7 evens 22,28 Riverhead Business Improvement District Mgmt. Assn. v. Stark, 253 A.D.24 752, 753-154, 677 N.Y.S.2d 383, 385 (2d Dept. 1998)....... 229 Spitzer v, Farrell, 100 N.Y.2d 186, 190, 761 N.Y.S.2d 137, 140 (2003). 6 ‘St. Onge v. Donovan, 71 N.Y.2d 507, 515-516, 527 N.Y S.2d 721, 724-725 (1988) ...... 40 ‘Stony Brook Village v. Reilly, 299 A.D.2d 481, 750 N.Y.S.2d 126 (2d Dept. 2003) 22 Teich v. Buchheit, 221 A.D.2d 452, 453-54, 633 N.Y.S.2d 805, 806-07 (2d Dept. 1995) ... Tylec v. Niagara County Legislature, 175 A.D.2d 676, 572 N.Y.S. 2d 600 (4" Dept. 1991)... ecssesecsssneeenen Waldbaum Inc. v. Village of Great Neck, 10 Misc.3d 1078 (A), 2006 WL 250520 (Sup. Ct. Nassau Cty. 2006) Watch Hill Homeowners Assn. Inc. v. Town of Greenburgh, 226 A.D.2d 1031, 1034, 641 NYS. 2d 443, 445 (3d Dept. 1996)... ” 4 STATUTES & REGULATIONS 6 NYCRR § 617.2 (ag)... Fz oe AD 6 NYCRR § 617.3(2)..G6 NYCRR § 6174... 6 NYCRR § 617.7 (a)... 6 NYCRR 617.7(6\(1)Gv). GNYCRR § 617.7(6) (1) (We. 6 NYCRR 617.766)(1)(Wii)...... 6 NYCRR 617.7()(2) . . 627,43 8 NYCRR § 174.2. 37 40 NY General Municipal Law § 239-m NY General Municipal Law § 239-m (3) NY General Municipal Law §239-m(1)(c) .. NY Municipal Home Rule Law § 20(4) .. NY Municipal Home Rule Law § 23(2)(f) .. NY Village Law § 7-704.. Village Code 225-1 et seq Village Code §225-4(B) .... Village Code, § 225-6.. Village Code § 225-6 (D)....sessesee Village Code § 225-6 (E). Village Code § 230-4. Village Code § 230-17(A). Village Code § 230-17(B)(8) .. Village Code § 230-20.3 Village Code § 230.20-6.. Village Code § 230-35 .. Village Code §§230-55.... Village Code § 230-180. 1, 52, 53, $4, 55, 56, 57, 58, 65OTHER AUTHORITIES 1983 N.Y. Op. Atty. Gen, 1116, 1983 WL 167417. 1986 N.Y. Op. Atty. Gen 57, 1986 WL 223065...SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER In the Matter of the Application of THOMAS SIMONE and HOLLY CROSBIE-FOOTE, Petitioners, Index No. Ina Proceeding Pursuant to Article 78 of the CPLR, Against THE VILLAGE OF CROTON-ON-HUDSON, 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-ON-HUDSON PLANNING BOARD, Chris Kehoe, Vincent Andrews, Frances Allen, Robert Luntz, Mark Aarons, As Its Members, THE VILLAGE OF CROTON-ON-HUDSON WATERFRONT ADVISORY COMMITTEE, Frances Allen, Robert Luntz, Richard Olver, Demetra Restuccia, ‘Charles Kane, As Its Members, and 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, 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 SHARMA, KANWA SHARMA, LVM REALTY CORP., CYNTHIA ELDREDGE, and DAJA VIEW REAL ESTATE INC., Respondents. MEMORANDUM OF LAW IN SUPPORT OF VERIFIED PETITIONPRELIMINARY STATEMENT ‘This special proceeding is brought by two Harmon property owners over a highly contentious issue in the Village of Croton on Hudson. ‘The rezoning of the Harmon Gateway District from a small scale historic commercial district to a potential 3-story residential district with first floor storeftonts has been full of misunderstandings and misstatements. Unfortunately, those charged with bringing clarity to the issues ~ the Village Board of Trustees —as lead agency in the SEQRA review, treated much of the process as a marketing IRA to identify potential impacts, take tool, rather than fulfilling its responsibilities under a hard look at them, and then determine their significance, with a reasoned elaboration of same. Thus, many negative impacts were ignored or understated, while a number of potential beneficial impacts were unsubstantiated or exaggerated. ‘The Village has a highly engaged citizenry and a number of volunteer boards and committees designed under the Village Code to provide some checks and balances to the Board of Trustecs. The Board of Trustees observed the important and legally mandated functions these groups perform for a short period, but then abandoned them, along with. various Village Code requirements, once it decided to substantially revise the Harmon Rezoning Law and adopt it with breakneck speed. As for keeping its citizenry informed, although the Village posted voluminous documents to the “Harmon Zoning Background Documents” section of the Village’s website, it did not post there a couple of critical documents that raised questions about the Harmon Rezoning Law's impacts. Certain concems raised by the Village Planning Board, the Croton Historical Society and numerous itizens were not addressed. ‘The Harmon Rezoning Law is a complete u-turn on the goal of preserving small scale and historic character embodied and embraced just a few years ago in the Village's 2003, Comprehensive Plan and 2004 Gateway Legislation. ‘The 2004 Gateway Legislation was 2subjected to a full Environmental Impact Statement process so its intent and rationale is well documented. Over and over again the 2003-2004 SEQRA documents make it clear that a reduction in lor Area Ratio (“FAR”) was a tool to generate positive environmental impacts illage’s Gateway Districts, including the Harmon Gateway District. Justa few years in the later, the Village Board now asks us to believe that a substantial increase in FAR is the panacea for what supposedly ails Harmon, and implies support for that concept can be found in the 2003-2004 Gateway SEQRA materials. There is no such support. Nor is there any answer to the question those 2003-2004 materials raise — if reducing the PAR was supposed to have so many beneficial impacts, how can doubling the FAR not have one single potential negative impact? ‘The Village Board adopted an Environmental Assessment Form (“EAP”) and Negative Declaration that forgo credible analysis to produce the desired result: a conclusion that a rezoning law that doubles the permissible FAR, at a minimum quadruples the residential square footage and permits a third story, in an area adjacent to a residential district and overlooking the Hudson River, will have not one potential significant environmental impact. These documents further claim that the end result will produce tax revenues for the Village, when in fact every taxpayer in the Croton-Harmon school district is more likely to end up paying higher school taxes and having more crowded schools. Not a single sentence in the SEQRA documents analyzes the potential negative impacts of removing the special permit requirement for mixed use —a major component of the new law. ‘The process that led to this folly, as well as the many laws broken along the way, are deconstructed herein,STATEMENT OF FACTS. Petitioners respectfully refer to the Verified Petition and accompany affidavits of ‘Thomas Simone, sworn to March 10, 2009, and Holly Crosbie-Foote, sworn to March 9, 2009, for a complete statement of alleged facts. POINT I ‘THE VILLAGE FAILED TO COMPLY WITH SEQRA Judicial review of an agency's SEQRA determination focuses on 1) whether the agency followed lawful procedure; and 2) whether the agency's determination “was affected by an error of law or was arbitrary and capricious or an abuse of discretion.” Akpan v. Koch, 75 N.Y.2d 561, 570, 555 N.Y.8.2d 16, 20 (1990)(citations omitted). The reviewing court ‘must determine “whether the agency identified the relevant areas of environmental concern, took a ‘hard look’ at them, and made a ‘reasoned elaboration’ of the basis for its determination.” Id; Chinese Staff and Workers Association v. City of New York, 68 N.Y.24 359, 363-364, 509 N.Y.S.2d 499, 501 (1986). ‘As will be shown herein, in enacting the Harmon Rezoning Law, the Village Board of ‘Trustees (“Village Board” or “Board of Trustees”) failed to comply with SEQRA. First, the identify several potentially significant environmental impacts of the Village Board failed t Harmon Rezoning Law. Second, the impacts the Village Board did identify were not given a “hard look.” Third, in issuing a Negative Declaration, the Village Board did not provide a “reasoned elaboration” of the basis of its determination that the Harmon Rezoning Law would not have a significant environmental impact. Fourth, review of the Harmon Rezoning Law was improperly segmented from review of other related projects. Finally, the Village Board's inexplicable rush to enact the Harmon Rezoning Law did not meet the procedural requirements of SEQRA.Many of the unidentified impacts are best addressed in the context of the broad areas of impact the Village did identify and analyze: 1) land use and zoning; 2) aesthetic resources; 3) traffic and parking; and 4) growth and character of the community. Therefore, this discussion of SEQRA non-compliance begins with the flawed analysis of the four areas of impact identified by the Village Board, including the omission of obvious impacts that would hin them, and is followed by a discussion of additional unidentified impacts naturally fall w and procedural flaws. A. The Village Failed to Take a “Hard Look” in the Areas of Impact It Identified. Land Use and Zoning. 1, Elawed Analysis of Impact a. Village Creates Implausible “Most Likely Scenario”. The Village Board’s faulty reasoning begins with its analysis of the impact of the Harmon Rezoning Law on land use. Because the Harmon Rezoning Law permitted a doubling of the permissible floor area permitted on any given lot (“Floor Area Ratio” or “FAR”),' it substantially increased the intensity of the use of land. Under 6 NYCRR § 617.7(¢)(1)(viii), a substantial change in the c of land is an “indicato[r] of significant adverse impact[t] on the intensity of us environment.” The EAF Part 3 and Negative Declaration fail to acknowledge that there is any change in intensity of use of land as a result of the FAR increase. Nevertheless, the EAF Part 3 created alternative build-out scenarios that, in effect, attempt to forecast certain impacts of the increased FAR. As the Negative Declaration issued by the Village Board on November 16, 2009 (“Negative Declaration”) explains, because the proposed action was a zoning change rather than specific proposed development, | 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. See Exhibit 4.the Village Board put forth three development scenarios and assigned a likelihood to each. ‘cenario 1”) was a full build-out on 8 of the 44 rezoned ‘The scenario deemed “most likely” (“ parcels, filling the vacancies on a 9" parcel, and absolutely no build-out on the remaining 35 parcels.’ The two other scenarios ~ both deemed “unlikely” - were full build-outs on all 44 parcels — one with no combination of parcels (“Scenario 2”) and the other with combination ofa few parcels (“Scenario 3”). See BAF Narrative, pp. 18-35, Exhibit 27; Negative Declaration p. 4, Exhibit 34. Because Scenario | was deemed “most likely” in the “near term” and Scenarios 2 and 3 were deemed “unlikely,” see EAF Narrative, p. 18, 22, Exhibit 27, the Village Board based its Negative Declaration on the projections (parking, traffic, school enrollment, taxes, hibit 34. Thus, by 1. See Negative Declaration at 7, 8, etc.) arising from Sen: including so few parcels in Scenario 1, many potential impacts were understated. ‘One reason Scenario 1 may have included so few parcels was because it only purported to include parcels likely to redevelop in the “near term.” No definition was provided for “near term” nor was any justification provided for why only the “near term” was, being modeled. Nor could there be. For the purpose of determining whether an action causes “a substantial change in the intensity of use of land,” the lead ageney must consider reasonably related “near term” and “long term” impacts. See 6 NYCRR § 617.7(c)(2); see also Spitzer v. Farrell, 100 N.Y 2d 186, 190, 761 N.Y.8.2d 137, 140 (2003)(short term and, long term environmental effects should be looked at when making initial determination of significance); Farrington Close Condominium v. Village of Southampton, 205 A.D. 24 623, 626, 613 N.Y $.2d 257, 260(2d Dept. 1994)/"for purpose of determining whether an action ? The 8 parcels deemed redevelopable in Scenario | are 29 (Nappy's); 8-9 (former Croton Dodge); 3-4 (former Riverside Four Restaurant), 2 (Umaini), 26-27 (vacant lot). Parcel 12 is the one on which vacancies are to be filled. EAP Narrative, Exhibit 27, p. 18.will cause a significant effect on the environment, the reviewing agency must consider reasonably related long-term, short-term and cumulative effects...”), The fact that Scenario 1 was only most likely “in the near term” renders it insufficient for SEQRA purposes in evaluating whether the Harmon Rezoning Law would have a significant adverse impact on the environment. ‘There is no further “reasoned elaboration” of why the parcels in Scenario I were so The Negative Declaration claims that included or why Scenario 1 is a realist the basis and reasoning for the conclusion that Scenario | is realistic is spelled out in the HBDC August 2008 Zoning Recommendations Report and the EAF Part 3, see Negative Declaration at p. 4, Exhibit 34. However, no clear explanations are found there; in fact the HDBC August 2008 Zoning Recommendations Report and the EAF Part 3, as well as the sion Report, suggest that Scenario I understates likely development. HDBC Property Uti ‘The closest the Village Board comes to an explanation as to why Scenario 1 is likely isa mention in the BAF Part 3 that the 8 parcels in Scenario 1 are “vacant” or “significantly e, p. 18, Exhibit 27. These terms are not defined, nor do underutilized.” See EAP Narrative they have any meaning obvious to the reader under the facts of this case. One of the parcels in Scenario | has a thriving business, (Umami-Parcel 2). Another two parcels, though unoccupied, have a large 2-story structure that is 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, now vacant, are currently under review by the Village > All references to “Exhibits” are to Exhibits submitted with Petitioners’ Verified Petition. “In contrast, the Negative Declaration does explain, to some extent, why Scenarios 2 and 3 are unlikely. See Negative Declaration at 4. However, because there are theoretically many more possibilities than full development of 8 parcels (Scenario 1) and full development of all parcels (Scenarios 2 and 3), this does not answer why Scenario J is “likely.”Planning Board for possible re-opening as a vintage car repair shop/dealership (former Croton Dodge-parcels 8-9).° See Petition 4137. On the other hand, there are many other parcels that appear to be equally “underutilized” or “vacant” that were not included in Scenario 1. The HBDC’s Property hat Parcels 11, 30-31 and 33 could Utilization Study identifies some of them: it state accommodate an FAR that would exceed 0.6, and Parcels 13, 20-22, 23-25 and 28 could possibly achieve an 0.8 PAR if the design of their parking areas were improved or they combined with adjacent parcels. See Property Utilization Study at pp. 3-4, Exhibit 8. ‘The 5 parcels on Croton Point Avenue added at the 11" hour to the Harmon Rezoning Law in October were not included in the HBDC’s Property Utilization Study, but also appear to be developable according to the SEQRA materials accompanying the 2004 Gateway lory structure that is islation.® See Petition at | 57. Parcel 19 contains a small one- currently vacant with a large rear parking lot and thus would seem to be an ideal candidate for redevelopment; yet it is not included in Scenario 1. See Petition | 138. In addition, the HBDC August 2008 Zoning Recommendations Report clearly suggests that providing density incentives (ce., increased FAR), as the Harmon Rezoning Law does, will make smaller lots that are constrained by parking restrictions more attractive to abutting larger lots for combination: * Even if this use is rejected, there is no basis provided for why the 10, 225 square foot structure currently on Parcels 8-9 (former Dodge property) is more “likely” to be torn down or reconfigured into a 3-story 0.8 FAR building in the near term than other buildings in the rezoned district. See Petition, 4] 137. ©The BAF Part 3 conclusorily states that these and the other 8 parcels added in October 2009 to the Harmon Rezoning Law had only “small amount of potential development area” and therefore potential development of them would not be significant.” The Negative Declaration claimed that “since these parcels are developed, they are not considered to have significant additional redevelopment potential within the proposed regulations.” Negative Declaration, p. 6. This makes no sense, as virtually all of the parcels in the Harmon Gateway District are “developed,” with the exception of the vacant lot on Parcels 26-27. 8Some parcels as currently configured lack street frontage width or have not individual likely access for rear parking, without the right to access an adjuining parcel. Should this set of zoning recommendations be adopted, such parcels can certainly be developed, as-of-right, under the current 0.4 o 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, HBDC August 2008 Zoning Recommendations Report, p. 27, Exhibit 9 The Village Board's Scenario 1 did not take into account the combination of such lots. The failure to provide the criteria for inclusion in Scenario 1, of to explain why so many parcels were excluded when they appear to be redevelopable, renders Scenario 1 suspect at best. Scenario 1's problems do not end there, however. The EAF Part 3 and Negative Declaration ignore the fact that, with the elimination of the special permit requirement for mixed use and the now permissible use of half of the first floor for residential dwelling units, riot can now convert their already developed all parcels in the Harmon Gateway Di ial apartments as of right, subject only to the limitation that 50% of the structures into reside first floor be commercial and that they not exceed the pre-Harmon Rezoning Law FAR, 4. (Previously the first floor limitation of 0.4 for mixed use in the Harmon Gateway had to be 100% commercial and second floor residential required a special permit.) Such conversions (as opposed to redevelopment) could have dramatic impacts on schoo! enrollment, for example, without offsetting significant tax increases from additional taxable square footage. ‘The more lenient parking requirements for dwelling units, as opposed to commercial space, as well as the apparently greater demand for residential rather than commercial space, increases the likelihood of such conversions.’ ‘These potential conversions of commercial space into residential space were never considered in “Scenario ? Under the Harmon Rezoning Law, one-bedroom dwelling units are only required to have one parking space, with one additional space required for each additional bedroom. See Hermon Rezoning Law, Exhibit 35. Commercial space is subject to a requirement of one parking space per 250 or 300 square feet, depending on use. Village Code § 230-35, Exhibit 4. The street-facing facades of the first floor must be 60% glass1.” Compare Neville v. Koch, 79 N.Y.2d 416, 427-28, 983 N.Y.S.2d 802, 807-808 (1992)(reasonable worst case scenarios acceptable way to measure impact of rezoning: petitioners failed to show their worst cases were even possible under rezoning). ‘The Village Board’s own conduct immediately following passage of the Harmon snatio | is actually “most likely.” The Rezoning Law is also inconsistent with a belief that St Village held a meeting for all parcel owners in the Harmon Gateway District on 12/8/09, explaining how the newly enacted Harmon Rezoning Law could benefit them, The materials distributed at the mecting included write-ups demonstrating how two specific properties could now be redeveloped under the new law — and one of the properties had not previously been included in the “most likely” Scenario 1! See Petition, 254. Because there is no “reasoned elaboration” for the conclusion that Scenario 1 is in fact the “most likely” scenario, and because such conclusion is irrational, arbitrary and capricious, it should be rejected, See Ginsburg Development Corp. v. Town Board of Cortlandt, 150 Mise.2¢ 24, 31-32, 565 N-Y.S.2d 371, 375-76 (Sup. Ct. Westchester Cty. 1990)(conclusory statements do not constitute “reasoned elaboration” in Negative Declaration). Because the Negative Dectaration based its conclusions of no significant adverse impact on parking, traffic, school enrollment, taxes and infrastructure needs on the irrational assumption that Scenario 1 was likely, it must be rejected as well. Cf. County of Orange v. Village of Kiryas $.2d 57, 61 (2d Dept. 2007)(SEQRA findings statement Joel, 44 A.D.3d 765, 768, 844 N.Y. approving FEIS must be vacated as arbitrary and irrational if conclusions not supported with rationally-based assumptions). b. ‘The Harmon Rezoning Law Conflicts with Officially Adopted Land Use Plan and Goals, ‘The BAF Part 2 erroneously failed to indicate that the Harmon Rezoning Law “conflict{s] with officially adopted plan and goals.” See EAF Part 2, p. 6, question 19, 10Exhibit 18, Similarly, the Negative Declaration concluded that the Harmon Rezoning Law ‘was “consistent with the objectives of the Comprehensive Plan.” Negative Declaration, p. 5, Exhibit 34," In fact, the Harmon Rezoning Plan conflicts with inter alia the officially reflected adopted plans and goals of “small scale” and “preservation of historic character gislation.” Thus, in the 2003 Comprehensive Plan, and its implementing 2004 Gateway I under 6 NYCRR § 617.7(c)(1)(iv), a finding of significant adverse impact was warranted. with a community's current plans or goals as See id. (“creation of a material con officially approved or adopted” indicates significant adverse impact). Rather than examine whether the Harmon Rezoning Law’s doubling of the permissible floor area ratio (“FAR”), allowance of a third story, and elimination of special permit requirements for mixed use and retail uses conflicted with the officially adopted goals of “small scale” and “preservation of historic character,” the Village Board limited its analysis of the Harmon Rezoning Law’s impact on its land use policies to whether it “encouraged improvements, commercial activity and vitality” to the Harmon area.” See ‘Negative Declaration, p. 5, Exhibit 34. “Encourag{ing ] improvements, commercial activity and vitality” by permitting three floors of dwelling units is quite a distortion of the 2003 Comprehensive Plan’s goal of increasing the quality and variety of retail stores. See 2003 Comprehensive Plan, Chapter 4, p. 79, Exhibit 1, Notwithstanding that, the issue is not whether the Harmon Rezoning Law is possibly consistent with one component of one officially adopted goal but whether it creates a material conflict with any officially adopted goals. If the answer to that question is “yes,” ® The Negative Declaration also claimed the Harmon Rezoning Law was consistent with the objectives of the HBDC, but the goals of the HBDC per se are not “officially adopted plans and goals” of the Village of Croton on Hudson ° The Harmon Rezoning Law also conflicts with the officially adopted goals of the Local Waterfront Revitalization Program, which is addressed separately in Point Il, infra uthen the Village Board was obligated to address the conflict. As explained below, the Village Board completely failed to do so. One of the basic goals of the 2003 Comprehensive Plan was to and Historie Chi 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. 2003 Comprehensive Plan, at 78, Exhibit 1. ‘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 multiple parcels which would enable large-scale retail development should be prohibited.” Id. at 82. (emphasis added). Obviously, doubling the permissible PAR and permitting a third story, as the Harmon Rezoning Law does, is not “maintaining” the “scale and massing of the existing structures.” With respect to housing, in a section entitled ‘4.6 Residential Neighborhoods and Housing,” the 2003 Comprehensive Plan states the following: ‘A. 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.. B. Neighborhood Scale and Character. The strategies described in this section “focus on preserving the scale and character of Croton-on-Hudson's neighborhoods. These specific strategies include:...Jssuing housing scale requirements to limit the bulk of new buildings 12C. 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. D. In Harmon, the compact, smaller scale of the homes and green quality of the streets contribute to the charm of the neighborhood. Ia. at p. 106, (emphasis added) This section of the Comprehensive Plan couples “Residential Neighborhoods” and “housing.” Arguably, this suggests that the Comprehensive Plan views “housing” as not This i belonging in non-residential neighborhoods, or at least not to a large degree. corroborated by the Comprehensive Plan’s “strong endorsement” of the goals of the 1977 Master Plan for the Village, which stated: [jhe 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.” Id. at 75. Even under the “most likely” Scenario 1, approximately 40,000 square feet of new 1000 square foot apartment dwellings are anticipated, compared to the less than 10,000 75. A quadrupling of in the area now. See Petition, square feet of apartments that exi residential space with 1000 square foot apartments does not constitute the “modest increase” in “small apartments” contemplated by the 2003 Comprehensive Plan. Alternatively, the creation of 40,000 square feet of residential space is, in effect, a “further large-scale residential development” that “alters the existing development in the Village” and therefore conflicts with the 2003 Comprehensive Plan. ii, 2004 Gateway Legislation Reduces FAR to Preserve Small le development Character of Village. The Village’s commitment to only small-s following enactment of the 2003 Comprehensive Plan was further clarified in 2004 with the passage of the 2004 Gateway legislation, particularly with respect to the Harmon Gateway BDistrict.!” In accordance with the 2003 Comprehensive Plan, the 2004 Gateway Legislation reduced the permissible FAR in the Harmon Gateway District, to preserve the small scale and ined in the 2004 Gateway SEQRA Findings, historic character of the Village. As expla ‘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 FARs 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) and establish an FAR for the North End (zoned 0-1, which at present does not have an FAR). 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. See id. p. 6, Exhibit 3 (emphasis added). ‘The Village Board also found that small-scale could be preserved without foreclosing future development: “[t}hrough the FAR and building size regulations, the regulations will encourage development that is appropriate to the small-scale character of the village. he 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 a Moreover, the 2004 Gateway Legislation included design standards for each of the three gateway districts. Specifically with respect to the Harmon Gateway District, the guidelines provide: ‘New development, landscaping and streetscaping in the South Riverside/Harmon 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 (emphasis added), Exhibit 4, As demonstrated above, the repeated references in the Village’s 2004 SEQRA jrability of preserving small-scale character in the Harmon Gateway materials to the d District, and the achievement of that through a FAR reduction, are inescapable. Yet in 2009, '© Indeed, the Negative Declaration states that “the existing Gateway Overlay district regulations were a direct outcome of [t]he Comprehensive Plan update.” Negative rT)the Village Board doubled the permissible FAR to 0.8 and permitted a third story —and ignored any impact that would have on preserving small-scale character, Instead, it claimed the Harmon Rezoning Law was merely “proposed to expand and refine” the existing 2004 Gateway Legislation, See Negative Declaration at p. 5, Exhibit 34, This is utter nonsense. Finally, 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. The 2004 DGEIS explicitly states that the “overall impact” of reducing the FAR is beneficial. DGEIS at p. 39, Exhibit 5. More specifically, the DGEIS enumerates the many 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 any 24-hour period, These restrictions will have a beneficial impact on air quality and noise within the gateway areas. With reduced density and reduced hours of operation, fewer vehicular trips will be yerated than under the current zoning... * COMMUNITY FACILITIES AND SERVICES ...However, in the longer term, the reduction of the maximum density permitted within the gateway areas will effectively limit the potential impact on community Iacilities and services as compared to the existing zoning which allows higher densities within the gateway areas. «© TRANSPORTATION The proposed overlay will reduce the maximum permitted density within the gateway areas and limit the size of retail permitted. In the long-term, the reduction in density, retail size limitation and design improvements may increase the amount of foot traffic in the gateways and reduce the amount of vehicular traffic as compared to development permitted under current zoning. The impact on transportation will therefore be beneficial, «HISTORIC, 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 Declaration at p. 1, Exhibit 34. 45+ 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, Exhibit 5 (emphasis added). See DGFIS, pp. iiisv, We turn back to the Negative Declaration. Plainly the 2004 DGEIS cannot be used to support a finding that increasing the FAR, as the Harmon Rezoning Law does, will have no significant adverse impact. Yet this is precisely what the Negative Declaration attempts to do when it states 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 HarmowSouth 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 Harmon area. ‘The proposed action is consistent with the objectives of the Comprehensive Plan and the Harmon Busines Development Committee (BDC). Accordingly, the Board finds that no signifi adverse impacts to land use will result. See Negative Declaration, p. 5, Exhibit 34. (emphasis added) This Court should invalidate the Harmon Rezoning Law on this paragraph alone, What is before the Court is not a “refinement and expansion” of the gateway regulations but direot attack on them, ‘The evaluation of impacts of the 2004 Gateway Legislation’s reduction in FAR cannot be cited to support the Harmon Rezoning Law's inerease in FAR. ‘Thus, the Village Board should not be permitted to incorrectly state that the proposed action “js consistent with the objectives of the Comprehensive Plan” and strongly imply a document that contradicts that statement supports it. See LaDelfa v. Village of Mt. Morris, 213 A.D.24 1024, 1025, 625 N.Y.S.2d 117, 119 (4 Dept. 1995)(negative declaration based on EAF incorrectly stating that proposed action complied with existing zoning and underlying use restrictions annulled). 16iii, Village Doubles Permissible FAR in 2009 and Claims Seale Not Affected Citing the 2004 Gateway Legislation DGEIS was not the only questionable method by which the Village Board avoided taking a “hard look” at whether doubling of the permissible FAR. and permitting a third story in the Harmon Gateway District would impact the desired “small scale” and “historic character” of the Village First, the Village Board repeatedly claimed or implied that because it was not changing the maximum permissible height of 35 feet, there would be no change in the scale orthe streetscape. See, e.g., Negative Declaration at 6, Exhibit 34 (“[t]he 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...”); BAF Narrative at p. 36, Exhibit 27 (“{tJhe 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”); id. at p. 37 (“[t]he proposed amendments are intended to keep the scale of new development within existing maximums”). Ofcourse the scale of new development ‘would likely change; that is the sine qua non of doubling the FAR. Moreover, because a third story is now permitted when it was not before, the likelihood of a building approaching a 35-foot height has substantially increased — with only two stories and a FAR of 0.4 permitted previously, 2-story 35 foot high buildings were extremely impractical before enactment of the Harmon Rezoning Law." Second, the Village Board repeatedly emphasized that various other Gateway requirements, such as “curb cuts, open space, signage, lighting, building orientation and sidewalks” would now be extended to the expanded Harmon Gateway District to positive ' The Village Engineer pointed out the possibility of more mass at high elevations before the Waterfront Advisory Committee at their meeting to consider the Harmon Rezoning |.aw on August §, 2009. Petition, 109. ‘The EAF Part 3 also predicts 3-story buildings will be built under Scenario 1. See EAF Narrative, p. 37, Exhibit 27 v7effect, See, e.g, EAP Narrative at p. 36, Exhibit 27. Even if this were so, recognizing one ment of the 2004 Gateway Regulation positive aspect of expanding an unchanged requit (e.g, curb cuts, ete.) did not obviate the need to recognize and address the negative impacts of changing the 2004 Gateway Legislation (¢.g. increased FAR). A core value for the Harmon Gateway District, as reflected in the Comprehensive Plan, the 2004 Gateway legislation and the accompanying SEQRA documents, was preserving its small scale and historic character. In reviewing the Harmon Rezoning Law, the Village Board never addressed how small scale and historic character would be impacted .R and allowing a third floor of residential space.'” by doubling the permissible ‘Therefore, its conclusion that the Harmon Rezoning Law “is consistent with the objectives of irrational, arbitrary and the Comprehensive Plan,” see Negative Declaration at 5, Exhibit 4, capricious. See LaDelfa v. Village of Mt. Morris, 213 A.D.2d 1024, 1025, 625 N.Y.S.2d 117, 119 (4* Dept. 1995)((negative declaration based on EAF that erroneously stated plan would not change density and complied with Village’s master land use plan violated SEQRA). 2. Flawed Analysis of Impact on Aesthetic Resource ‘The Village Board’s analysis and conclusions relating to the impact of the Harmon Rezoning Law on aesthetic resources is no less problematic. The issue of ignoring the impact of increased building scale/FAR on land use applies equally to aesthetic resources, as the larger scale of buildings in the Harmon Gateway District will affeet its historic characte ‘as well as sight lines, streetscapes and light for parcels in and around the Harmon Gateway District. Moreover, many of the parcels that were rezoned under the Harmon Rezoning Law, as well as parcels adjacent to them, have Hudson River views available not just to the parcel '? The EAF Part 3 does note that the Harmon design gui es are intended to enhance the ‘small-scale character of the district and will be extended to the expanded Harmon Gateway District, see BAF Narrative 3, p. 34, but the guidelines enacted thus far do not deal with 18owners but pedestrians and others who choose to enjoy them. ‘These scenic views were given short shrift by the Village Board, The Harmon Gateway District contains a building whose historic importance was known to the Village Board (“Historic Harmon Sales Office Building”) and the southemmost portion ofthe rezoned area is approximately 500 feet from a national historic landmark (Van Cortlandt Manor). Nevertheless, in stating in the Negative Declaration that the Harmon Rezoning Law would have no significant adverse impact on aesthetic resources, the Village Board took the position that rezoning to permit buildings that are twice as bulky and much more likely to be 3-stories will have no negative impact on any ‘As will be seen below, this is a patently irrational analysis and of these aesthetic concems, conclusion. 1. Impact of Increased Building Scale on Aesthetic Resources. As explained in the previous section, the Village Board simply failed to acknowledge that building scale would change. Thus, the Negative Declaration’s entire treatment of the “scale” issue with respect to aesthetic resources is that “the proposed zoning amendments will keep the scale of new development within existing maximums for building height.” Negative Declaration at 6, ly constitute the “hard look” or “reasoned elaboration” required under SEQRA. b. Impact on the Hudson River and other Views. The inadequacy of what the its treatment of the Harmon Rezoning Village Board did is nowhere more evident than Law’s impact on Hudson River views. At the August 5, 2009 Waterfront Advisory meeting, Trustee Olver stated that scenic impact of the Harmon Rezoning Law Commit was a legitimate concem. See Petition, § 108. Yet the BAP Part I falsely states that the Harmon Gateway District did not include scenic views known to be important to the building scale per se but rather other visual aspects, such as signage, landscaping, sidewalk design and lighting. See Village Code §230-20.6, Exhibit 4. 19Question 14, Exhibit 18. ‘The EAP Part 3 mischaracterized community. See BAF Part 1, p. 3 the views of the Hudson River available from South Riverside Avenue and did not even identify the views available on Croton Point Avenue." The Negative Declaration is silent on these scenic views, and like the EAF Part 3, ignores whether such views ~ whether partial or full - will be impacted by the rezoning and construction of 3-story buildings on various parcels in the Harmon Gateway District. Yet the Village has always been protective of the Hudson River views available in many areas of the Village. This protectiveness has extended to the very parcels that are included in the Harmon Rezoning Law. In 1990, the then-owner of to of the rezoned parcels (Parcels 24-25) took the Village Planning Board to court when the Planning Board objected to the size of a large gas station canopy on the grounds it would block the significant Hudson River views available from the parcel and surrounding streets. Thus, Trustee Ann Gallelli, who chaired the Village Planning Board in 1990, stated in an 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 Avenue, vehicles or pedestrians have a clear view across the Exxon station to the marshes and the Hudson River. ...{she canopy] would seriously obstruct and interfere with the significant river views enjoyed from South Riverside Avenue. See Gallelli Affidavit, pp. 4 Exhibit 19. The BAF Part 3 simply states “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. One can sce partial views to the river if looking west from South Riverside Avenue down Croton Point Avenue.” EAF Narrative, p. 36, Exhibit 27. In fact, significant views are available, particularly in the winter, from a number of spots on South Riverside and Croton Point Avenues, as well as from adjacent streets Young Avenue and Wayne Street. Petition 85. As noted in the Village's LWRP, “South Riverside Drive and the Route 9 corridor is also considered of local and regional significance because it allows unparalleled views of western shorelands from major thoroughfares,” Village LWRP , at III- 37, Exhibit 7, 20The Village Planning Board lost in court and the canopy went up, No other construction has gone up since, and the scenic Hudson River views are still there for xon (now a Gulf) station and many other points along South enjoyment, from both the Riverside and Croton Point Avenues. See Petition $f 85-86 and Exhibit 20. Yet the concerns Ms, Gallelli expressed over a mere canopy — which is approximately 20 feet tall — have apparently vanished, and she and the rest of the Village Board enacted a zoning law that would permit a vastly bulkier, taller and much more view-obstrueting building on exactly the same site, as well as many others sites with scenic vantage points." ¢. Impact on Van Cortlandt Manor, Van Cortlandt Manor, a national historic landmark, is located fess than 500 feet from the Harmon Gateway District. In the 2004 EAP for the 2004 Gateway Legislation, it was deseribed as “substantially contiguous” and trict. See 2004 Gateway Legislation EAF, at p. 10 “proximate” to the Harmon Gateway 21. Yet in 2009, Van Cortlandt Manor is suddenly not (question 6) and p. 14, Ex! substantially contiguous to the Harmon Gateway District, see EAF Part 1, question 6, p.3, Exhibit 18, and rates only the briefest of mentions in the EAF Part 3, See EAF Narrative, p. 3, p. 36 (“Van Cortlandt Manor is located outside of the South Riverside/Harmon gateway district to the South.”) In 2004, the Village stated, with respect to Van Cortlandt Manor: 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. DGEIS, p. 31, Exhibit 5. In 2009, without any “reasoned elaboration” or other support in the record whatsoever, the Negative Declaration claimed that the Harmon Rezoning Law is “designed to create a positive aesthetic impact” on the Manor's entrance. Negative Declaration, p. 6, Exhibit 34 The potential impaired vistas, as well as Ms. Gallelli’s affidavit, were introduced at the public hearing by speaker Roseann Schuyler. See Village Board Meeting Minutes 11-2-09, 21This is not a sufficient analysis of the Harmon Rezoning Law’s potential impact on the landmark site, particularly since the bulk guidelines that supported a positive impact finding in 2004 were changed substantially in the Harmon Rezoning Law. See Pyramid Co. of Watertown v. Planning Board of Town of Watertown, 24 A.D.34 1312, 1313-1314, 807 NLY.S. 2d 243, 245 (4" Dept, 2005)(conclusory statement in findings statement that project would not affect acknowledged wetlands insufficient), Moreover, for even this to be true, one would expect one of the parcels likely to be redeveloped under Scenario 1 to be near the Manor's entrance, or en route to it from the Van Cortlandt Manor exit from Route 9 along Croton Point Avenue, None of the Scenario | parcels fall on this route. However, in the event that non-Scenario 1 parcels are redeveloped, there has been no consideration of the aesthetic impact of their increased bulk and height, including impact on Van Cortlandt ipact of conversion of buildings to Manor, nor has there been any consideration of the i mixed use, without further redevelopment, including on Van Cortlandt Manor. d. Impact on Historic Harmon Sales Office. ‘The Croton Historical Society twice alerted the Board of Trustees in 2009 of the importance of the Historic Harmon Sales Office in connection with the proposed Harmon Rezoning Law. See Petition, $91. The Society has ng designation of the building as a historic site with the NY State begun the process of se Office of Historic Preservation, and the Village Historian informed the Village Board of same in October 2009. See Petition 92, see also Simone Aff. {11 and Exhibit C thereto, Atthe Waterfront Advisory Committee meeting of August 5, 2009, Trustee Olver recognized the Historie Harmon Sales Office had significance in the history of the Village and its BAF Parts 1, 2 and 3, as well as preservation should be valued. See Petition, 4112. Yet the the Negative Declaration, do not acknowledge the existence of the building, Clearly the Village Board did not take a hard look at the impact of the Harmon Rezoning Law on the Exhibit 14; see also Comments of Roseann Schuyler, Exhibit 33. 2Historie Harmon Sales Office, despite being aware of it, See Stony Brook Village v. Reilly, 299 A.D.2d 481, 750 N-Y.S.2d 126 (2d Dept. 2003)(failure to acknowledge existence of neighboring nature preserve in negative declaration reflected lead agency did not take hard ook at impact of action on preserve); see also Pyramid Co. of Watertown v. Planning Board of Town of Watertown, 24 A.D.3d 1312, 1313-1314, 807 N.Y.S. 2d 243, 245 (4" Dept. 2005)(reviewing agency ignored concerns raised during publie comment period over wetlands), The Harmon Rezoning Law is likely to have an impact on the Historie Harmon Sales Office Building because its redevelopment potential has been significantly enhanced through the FAR/third story incentive provisions contained in the new law. Moreover, if itis not demolished to make way for a new building, its setting may dramatically change if all the buildings around it house three stories of apartments. ‘The Village Board’ failure to even contemplate such impacts was error. ce. Impact on Streetscape. The EAF Part 3 described the “existing conditions” of the streetscape in the area to be rezoned, noting that the buildings were generally “one and two story” with some [2] three story buildings located on one block of South Riverside.” EAF Narrative, p. 36, Exhibit27. The EAF Part 3 predicted that the new development envisioned in Scenario 1 will likely comprise 3-story buildings. {d. at p. 36-37. Yet incomprehensibly, the EAF Part 3 concludes that the “proposed amendments are intended to keep the scale of new development within existing maximums.” [d, at p. 37. As previously pointed out, this is simply not true, as the existing maximum was two stories with a FAR of 0.4. Permissible scale has doubled, and the likelihood of 3-story buildings has increased with the newly permissible third story. ‘ble bulk on ‘The Negative Declaration is silent on the impact of the increase in permis streetscape, including not just the appearance of the buildings and their small scale/historic character but the impact on light, At the August 5, 2009 Waterfront Advisory Committee 23meeting, Chairperson Fran Allen expressed just such concerns; she said did not want the main thoroughfare turned into a “tunnel with very little light” and a smaller building at the comer of South Riverside and Benedict would be better. See WAC Meeting Minutes 8-5-09, Exhibit 23. Trustee Restuccia advised that this (at least the latter issue) would be better concerns were issues for Trustee taken up by the Planning Board, /d. In fact, Ms. Allen’s Restuceia and the rest of the Board of Trustees to consider, and their failure to do so was yet another example of the Village Board’s failure to identify and take a hard look at potential impacts. f. Impact on Neighbors. The BAF Part 3 notes that some of the parcels identified for redevelopment as 3-story buildings are adjacent to existing single family homes on Young, Avenue and Wayne Street. See EAF Narrative p. 34, Exhibit 27. Other nearby residents, such as plaintiff Holly Crosbie-Foote, have views of the Harmon Gateway District F Narrative nor the ‘oote Aff. $f] 4-5. Yet neither the E, streetscape as well. See Crosbi ‘Negative Declaration address the negative impacts of 3-story buildings on those residents; laim that these residents will now enjoy “more stringent landscape, buffer and instead they cl screening requirements.” See, e.g., EAF Narrative at p. 34, Exhibit 27. Such requirements ‘may mitigate other negative impacts related to the rear parking the Harmon Rezoning Law fosters, but it has nothing to do with the view and light-blocking aspects of a 3-story building adjacent to or in view of one’s property. The existence of a few mitigating measures, which do not negate the adverse effects to any great extent, do not obviate the need for an EIS. See Watch Hill Homeowners Assn. Inc. v. Town of Greenburgh, 226 A.D.2d 1031, 1034, 641 N.Y.S. 2d 443, 445 (3d Dept. 1996)(analysis of visual impact of 200-foot tower limited to statement that its visual effect would be mitigated by plantings at its base and painted grey- blue to blend with the sky; analysis deemed insufficient and EIS required). 24Clearly, the Village Board did not take the required “hard look" at the Harmon Rezoning Law’s impact on aesthetic resources nor make @ reasoned elaboration of its finding of no significant impact. It did not address impaired views of the Hudson, impact on Van Cortlandt Manor or the Historie Harmon Sales Building, a changed streetscape, visual and character of audio impacts on neighboring properties, and how the small scale and histo the Village and Harmon would be changed by the addition of taller denser buildings. ‘The failure to do so is yet another example of how the Village Board failed to comply with SEQRA. See 6 NYCRR § 617.7(c)(1)(v)(listing “impairment of the character or quality of important historical, archacological, architectural or aesthetic resources or of existing jcator of significant adverse environmental community or neighborhood character” as, impact). ‘awed Analysis of Impact on Traffic and Parking. The Village Board based its conclusion that there would be no significant negative impacts on traffic and parking by relying on the Scenario I data. See Negative Declaration, p. 4, Exhibit 34. To the extent the “most likely” scenario understates likely development, see Point 1(A)(I)(@), supra, these conclusions are flawed. However, even without that problem, the traffic and parking impact analyses have serious problems. a, Impact on Traffic, As set forth in the Petition, although the EAF Part 3 and Negative Declaration described the traffic on local streets as “generally light,” other descriptions prepared by the Village Board for a federal grant (2008), a Bicycle/Pedestrian ‘Master Plan (2009) and the Exxon canopy lawsuit (1990) paint a starkly different picture, particularly during morning rush hour. See Petition, $¥ 158-163. It is plain that what the and South Riverside Village will say about the degree and nature of traffic on Croton P Avenues is colored by whom it is trying to persuade, rather than objective measures. 25along South Riverside and Croton Point Despite the claimed “generally light” traff ‘Avenues, the Village is the recipient of a $1.2 million federal transportation grant for traffic infrastructure along Croton Point Avenue and the creation of a bicycle/pedestrian path along. Croton Point and South Riverside Avenues. See Petition § 72. Putting aside the issue of mn for infrastructure for roads why the federal government would give the Village $1.2 mil ‘generally light” traffic, there is no analysis in the EAF Part 3 or the Negative Declaration of how these changes and additions will impact the traffic flow in the rezoned area. On the other hand, the Village announced to Harmon District Property owners, following passage of the Harmon Rezoning Law, that an “[a]pproved Gateway Improvements Grant [will] greatly increase the potential traffic to the Harmon business district.” See Exhibit 39.'° Yet this is never mentioned in the EAF or the Negative Declaration. Second, in September 2009, the Village entered into a $97,000 contract with Tim Haahs & Co. to study building a parking deck at the Croton-Harmon train station to create additional parking spaces. See Petition 73. The Village Board did not consider whether the creation of more traffic generated by more available parking spaces at the train station ‘would cumulatively impact the traffic impact of the Harmon Rezoning Law. Beyond the lack of consistency, and the omission of analysis of the impact of the ‘Transportation Grant and the potential parking deck at the train station, there are other issues that render the traffic impact findings inadequate. This problem partly stems from the fact that the traffic study was confined to “trip generation,” ie., how many motor vehicles are icture of the potential likely to be on the road ata given time, ‘That renders an incomplete traffic impacts of the Harmon Rezoning Law. * Presumably the Village was referring to the Transportation Grant in its 12/18/09 letter to Harmon Gateway District property owners. If there is another grant award that has the 26For example, the Village’s Transportation Grant application indicates “[aJlong S. Riverside Avenue where the roadway is too narrow for bieycle/pedestrian path, signs alerting motorists to share the road with bicyclists will be installed.” See Transportation Grant Application, p. 3, Exhibit 11. Two vacant parcels in Scenario I are located on this “too narrow” section of S. Riverside Avenue. If these parcels are redeveloped into a three-story apartment building, how will the traffic trying to Jeave at morning rush hour impact cyclists speeding downhill to the train station, never mind cars trying to get down the same lane? The interplay of the bicycle path, increased residential development and morning rush hour traffic ight was never considered by the Village Board, even though the Mayor commented on the of adoption of the Harmon Rezoning Law that one reason the Harmon Gateway was tackled. first was due to the Transportation Grant, and that it should be looked at as an “entire fabric.” , along with the failure to consider the impact of the potential See Petition §250. parking deck at the train station, was improper segmentation of related actions by the Village Board. See 6 NYCRR § 617.1 (c)(2); see Waldbaum Ine. v. Village of Great Neck, 10 Misc.3d 1078 (A), 2006 WL. 250520 (Sup. Ct. Nassau Cty. 2006), travelled routes ‘The quadrupling of residential space along “one of the most heavil in the entire village,” see Gallelli Affidavit, Exhibit 19 ~ that is about to share space with an official shared pedestrian/bicycle path -- has the potential to create yet another traffic problem during the morning rush hour, i.¢., school bus stops. This is especially important considering three of the parcels in Scenario 1 are located on South Riverside Avenue between Benedict Avenue and Croton Point Avenue, which is the busiest section of South Riverside ‘Avenue (and also contains the section of road too narrow for cars to share space with bicycles). How could siting a residential building with school children on a busy road that already has bicyclist/motor vehicle conflicts not create a traffic impact worthy of further potential to significantly increase traffic in the Harmon Gateway District, then clearly that 27attention? Yet the Village Board did not even consider that school bus traffic from the 42 divelling units it is projecting could interfere with the morning commuter rush hour. b, Impact on Parking. Many citizens complained throughout various Village Board and HBDC hearings and meetings that parking under the pre-Harmon Rezoning Law conditions in Harmon was horrendous. See Petition at 205. 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 onto residential side streets —as happens now. HBDC ‘August 2008 Zoning Recommendations Report, p. 17, Exhibit 9. ‘The Harmon Rezoning Law’s solution to this phenomenon was to reduce the parking requirements from two spaces per dwelling unit to one!"® The HBDC had recommended that the parking for dwelling units remain at two spaces per dwelling unit, 1d. at p. 17. The consultants hired by the Village, after reviewing the one-space-per-dwelling unit requirement of the Harmon Rezoning Law, recommended that the parking requirement should be increased to 1.5 parking spaces per dwelling unit, regardless of number of bedrooms. See EAF Narrative Part 3, p. 41, Exhibit 27, see also Parking Study, ‘Tables 1 and 2 and accompanying text (showing Harmon Rezoning Code will require 10 less parking spaces than are necessary under land use in Scenario 1), as well as Conclusion (“it is recommended that the code require 1.5 parking spaces per dwelling unit”), needed to be considered in the SEQRA process as well. Prior to the Harmon Rezoning Law, the parking requirement for dwelling units in both the Gateway District and the underlying C-2 district was two parking spaces per dwelling unit, regardless of bedroom count. See Petition, 52. The Harmon Rezoning Law requires one parking space per dwelling unit, with an additional parking space for each addition bedroom above one bedroom. The parking spaces required for commercial establishments remain unchanged. See Harmon Rezoning Law, Exhibit 35. 28Exhibit 29. The Village Planning Board, after reviewing the EAF Part 3 and consultant's report, questioned the parking requirement. '” Yet, incredibly, the Board of Trustees ignored everyone end took the position that: “the residential parking ratio in the proposed zoning...would be a sufficient minimum zoning standard for the range of uses anticipated, with final reviews subject to site plan approval. Any applicants seeking redevelopment with mixed use on parcels in the gateway area would have to demonstrate how they would meet parking requirements, and accommodate that parking on the site.” EAF Narrative, p. 41, Exhibit 27; see also Negative Declaration at 7 (same), Exhibit 34. 's own consultant, as well as the public, is Ignoring critical issues raised by a lead ager inconsistent with SEQRA. See Citizens Against Retail Sprawl v. Giza, 280 A.D.2d 234, 237- 238, 722 N.Y.S.2d 645, 648-49 (4"" Dept. 2001)(ncgative declaration vacated when town failed to follow recommendation of its own consultant among others); see also Munash v. Town Board of East Hampton, 297 A.D.24 345, 347, 748 N.Y.S.2d 160, 162 (2d Dept. 2002){ negative declaration vacated when town failed to wait for its consultant to complete evaluation). Moreover, the Village Board’s rationale is irrational on its face. If the parking requirements are insufficient to begin with, having an applicant demonstrate he can meet them solves nothing. ‘The Negative Declaration further states that if site plan review for individual proposals identified any parking impacts, mitigating measures could be taken. See Negative Declaration at p. 7, Exhibit 34, This may be acceptable if some unusual situation arises, but it is no solution to the general problem of providing inadequate parking requirements for the general uses anticipated. Cf Riverhead Business Improvement District Mgmt. Assn. v. Stark, 253 A.D.2d 752, 753-754, 677 N.Y.S.2d 383, 385 (2d Dept. 1998)(full SEQRA review with site plan approval does not satisfy SEQRA; likely impacts must be considered at time of zoning amendment enactment). "The Planning Board’ role in the Harmon Rezoning Law is addressed separately in Point I infra, 29The Village Board’s explanation for why it was ignoring the consultant's recommendation was that the predicted parking shortage “assum{es] an unlikely buildout with all restaurants and one bedroom units in the mixed use buildings.” BAF Narrative, p4l, Exhibit 27 (emphasis added), see Negative Declaration at 7 (relying on EAF Past 3 parking analysis). This is yet another ground for nullifying the Negative Declaration, as it is . as we shall see in the next section, the Village Board assumed all one-bedroom false. 1. mits to artificially lower the amount of public school students likely to populate Scenati ‘The Village Board cannot use one set of assumptions for parking and another set for school population projections. Second, the predicted parking shortage is not dependent on an all- restaurant scenario, Table 1 in the Parking Study, which shows that the necessary amount of parking spaces for the land uses in Scenario 1 (all 1-bedroom) is 100 spaces on weekdays and 104 on weekends, uses a mix of retail, restaurant and office. Table 2 in the Parking Study shows that under the Harmon Rezoning Law, the amount of parking spaces required will only be 94; hence the shortage. See Parking Study, Exhibit 29. Clearly, on this basis alone, the Village Board’s conclusion that the residential parking ratio “would be a sufficient minimum?” is irrational, arbitrary and capricious. Even the admitted 6-10 space shortage is understated. ‘The consultants did not even. consider that the existing parking conditions were strained; it claimed the current zoning codes “have proven to be reasonable for the area” when even the HBDC recognized a parking problem. See id. ‘The consultants even revised their report to downgrade Harmon's restaurants from “quality” to “high tumover” to eke out lower numbers for the necessary amount of parking spaces for land use, based on the assumption that the current zoning codes were reasonable. Id, Yet a Planning Board member noicd at the Planning Board’s September 22, 2009 meeting that the 24 parking spaces at local Harmon restaurant Umami is not sufficient and causes spillover. See Planning Board Minutes 9-22-09, Exhibit 22. 30not consider the unique parking requirements arising Finally, the Village Board from the Harmon fire station located adjacent to the Harmon Gateway District, where volunteers congregate regularly not just for emergency responses to fires but for training, sessions, The strain on fire department resources was brought up by a fire department volunteer (speaking as a private citizen) at the public hearing on November 2, 2009, and duly ignored. See Village Board Meeting Minutes 11-2-09. For all of the reasons stated above, the Village Board did not give Traffic and Parking issues a “hard look,” nor did they provide a reasoned elaboration of why the Harmon Rezoning Law would not have a significant adverse impact on traffic and parking. 4, Flawed Analysis of Impact on Growth and Character of the Community. ‘The Village Board analyzed student population growth, and resulting impact on school taxes in assessing “growth and character of the community.” These analyses contain basic math errors and other flaws, Because of these flaws, the EAF Part 3 erroneously claims that the Harmon Rezoning Law will generate revenue for the Village and not incur costs to the schoo! district. In fact, even under Scenario 1, which understates likely development, the Harmon Rezoning Law will likely cost Croton-Harmon school district residents more than the school tax revenues generated by it. In all but one instan citizens’ attempts to point out these mistakes were ignored by the Village Board. The Planning Board also questioned the math error, to no avail “The Village Board also considered impacts on infrastructure, but dispensed with any real analysis by deferring consideration until actual building proposals were submitted. fa. Projecting the likely number of students. The Village Board used a demographic multiplier to project the likely number of students from a given number of dwelling units, which in and of itself is not objectionable, The formula used to project the likely number of students was: 3# of dwelling units x demographic multiplier = # of projected students, ‘See EAF Narrative, p.43 Exhibit 27. Under this formula, to create the smallest number of projected students, one needs to use the smallest number of dwelling units and the lowest multipliers possible, The Village Board accomplished this very feat by assuming all dwelling units would be 1000 square feet and that all dwelling units would be one-bedrooms. (One bedrooms produce significantly lower multipliers than two-bedrooms, as one would expect more children in a two-bedroom sxhibit 27 (while 42 !-bedroom apartments apartment). See EAF Narrative, p. 43 & n.1-2, generated 4-12 students, “if an equal mix of 1 and 2-bedroom units were used, the Rutgers ‘multipliers indicate that the 42 apartments in Scenario #1 could generate approximately 7 to 18 students”). Thus, with 42,000 square feet of projected new residential space, the Village Board arbitrarily decided that this would be divided up into 42 new 1-bedroom apartments of 1 of .08 to .3 applicable to 1000 square feet each. Applying the Rutgers Residential Multip |-bedroom apartments, this produced a projected student population of 4 to 12 students." BAF Narrative, p. 43, Exhibit 27. ‘That is the projection used in the Negative Declaration. See Negative Declaration, p. 8, Exhibit 34. There was no rational basis for the Village Board to assume that the 42,000 square fect of new residential space would be carved up into such huge one bedroom apartments. Indeed, when doing the parking analysis, a scenario of solely one bedroom apartments was deemed “unrealistic.” See EAF Narrative, p. 41, Exhibit 27. Furthermore, given that there are currently 30 apartments in the Harmon Gateway District covering 9716 square feet, ble 9 ive, 1 averaging approximately 324 square feet each, see Petition at 170, RAF Narr ssuming that (p. 44), Exhibit 27, it was incumbent upon the Board to explain why it was a 32newly constructed apartments would be triple that size and only one bedroom." Even the Village Board’s consultants ran the numbers using a 50-50 split of one-bedroom and two- bedroom apartments (though still 1000 square fect each), resulting in a projection of 7 to 18 students, See EAF Part 3, page 43. However, as will be seen below, ifthe Village Board ions were correct (Which they are not), a projection of more than 14 revenue and tax proj new students would be tax negative for Village taxpayers who pay Croton-Harmon school district taxes (but not for the Village itself)” See EAF Narrative, p. 45, Exhibit 27. Hence the projection of 4 to 12 students. b. Tax Proj ‘The Village Board made a basic computational error in evaluating tax revenues, resulting in a large overstatement of revenues, and used a questionable cost-per-student computation that understates likely costs. i, Tax revenues. The Village Board’s tax projections are based on Table 9, set forth in the EAF Part 3, p. 44, and below. 1 The multiplier is .08 if the apartment rents for more than $1000 and .3 if the apartment rents for less than $1000. } Interestingly, these 9700 square fect of residential dwelling units is inhabited by 9 Croton- Harmon district students, BAF Narrative, p. 43, Exhibit 27; yet the Village Board maintains that quadrupling the amount of residential space in the same Gateway district will produce essentially the same number of students. 20 Most Village taxpayers pay school taxes to the Croton-Harmon school district, as well as the Village and the Town of Cortlandt. Under the Harmon Rezoning Plan, Village tax revenue might increase more than Village expenses; however, if the student population expands too much, Village taxpayers in the Croton-Harmon school district will face an increase in school taxes that exceeds any savings from Village taxes. 33Existing Scenario #1" [Scenario #2] Scenario Condition” Commercial Area @) [53,817 998 28,996 [28,115 Residential Units NA | 13526 Residential (6) 9,716 42,000 125,000 | 126.000 Total Area (sf) 63,533 31498 153,996 [154,115 “Average property tax per sf | $2.29 $2.29 $2.29 229 (08-09 rates) ‘Annual Total: Village STASSIOAT | 117,930.42 — | $352,650.84 | $352,905.35 Property Tax Revenue ($263,420 total) ‘Annual Total: School Tax | $247,075 $200,527.22 | $599,044.44 | $599,507.35 Revenue” (447,402 total) This table contains a major error. Column I of the table shows the current tax revenues, applicable to aif the rezoned parcels. Column 2 shows the projected tax revenues on the 9 parcels deemed “most likely” to be redeveloped, once they are redeveloped. Column 2 figures are then added to the figures in Column 1 to arrive at “total” projected tax revenue under Scenario I, This is erroneous. The Village Board failed to subtract the amounts that Scenario 1 parcels are currently generating in tax revenues. Only then can one arrive at the incremental and total tax revenues that would be generated under the Scenario 1. * From Harmon Zoning Change Recommendations (HBDC, August 2008) 2 Scenario #1 assumes redevelopment an 8 parcels of 36, and was combined with revenues for existing development to compare with full build-out scenarios 2 and 3. ® Sehool tax rate extrapolated from HDBC report 34A correct Table 9, just for the “most likely” Scenario 1, would appear as follows: 1 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) 53,817 16,252 9,498 (6754) | 47063 Residential [30 3 B a) Units Residential | 9,716 2134 42,000 39,866 | 49,582 (st) Total Area | 63,533 18,386 31,498 33,112 | 96,645 (sf) ‘Average | $2.29 $2.29 32.29 S229 92.29 prop tax per Sq. Fl (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 _ Thus, when the Village Board claimed in the EAF Part 3 that [school] “costs would range from $58,000 to $174,000 for Scenario #1 (4 to 12 school children) compared to school taxes of $200,347 [sic}generated,” id. at p. 45, it should have said “compared to school 35taxes of $128,805.68 generated.” The difference of $71,521 is already being collected from the 9 parcels in question, and cannot be included to calculate whether Scenario 1 will gonerate sufficient revenues to cover the costs of the students it is likely to generate, Thus, even under the Village Board’s faulty student projections of 4 to 12 school children, the eost of educating the students is likely fo exceed the school taxes generated. The Village Planning Board questioned the Board of Trustees on this very issue. See Planning Board Memorandum 10-28-09, Exhibit 32. (“It was not clear to the Board how the ario #1 was Annual Tolal: School ‘Tax Revenue as shown in Table 9 (Tax Estimates) for Se calculated and how it relates to the existing condition,i.e., should it be added to the existing condition total?”). ‘The Board of Trustees just ignored the Planning Board. A Zoning Board member submitted comments within days of the public hearing pointing out this same error in ‘See Comments of Roseanne Schuyler, Exhibit 33. She was ignored as well. Based on this miscalculation alone, the Negative Declaration’s conclusion that “based on the analysis in the EAF Part 3 Report, it is anticipated that the school tax revenue would offset the costs of potential new students to the district” (Negative Declaration at p. 8) is nus, See Corrini v, Village of Scarsdale, | Mise. 34 907(A), arbitrary, irrational and capris 781 N.Y.8.2d 623, 2003 WL 23145905 (Sup. Ct. Westchester Cty. 2003)(Negative declaration based entirely on factually inaccurate and misleading EAF annulled). ii, Cost per student. ‘The current cost per student for Croton-Harmon school district students is $23,900. See Negative Declaration, p. 8, Exhibit 34. The Village Board contended that a different number should be used in analyzing whether tax revenues would cover the incremental cost of new students generated by the Harmon Rezoning Law. ‘The Village Board used two approaches to bring the cost-per-student number down to approximately $14,500. First, it used an average out-of-district tuition cost for a non-special 36needs student in the Croton-Harmon school district, which is $14,500. See EAF Narrative, p. jct’s 45, Exhibit 27. The out-of-district tuition cost is calculated by deducting the di transportation, adult education, community and special needs expenses from the tuition to be charged an out-of-

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