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STATEOFNEW YORK : SUPREME COURT APPELLATE DIVISION :_ FOURTH JUDICIAL DEPARTMENT. DESIREE DAWLEY, JAMES DAWLEY, LYNN BARBUTO, ROBERT BARBUTO, JAMES NEARPASS, ASTRID NEARPASS, ‘TODD M. WORDEN, LAURA A. WORDEN, JONATHAN MORELLI, and JANE MORELLI, Petitioners-Appellants, vs, DocketNo, (Seneca County Index No: 48435) WHITETAIL 414, LLC, WILMORITE, INC., TOWN OF ‘TYRE TOWN BOARD, JAMES LEONARD, and JEANNE LEONARD, Respondents-Respondents. MEMORANDUM OF LAW IN SUPPORT OF PETITIONERS- APPELLANTS’ MOTION FOR A PRELIMINARY INJUNCTION HODGSON RUSS LLP Auorneys for Peitioners-Appellants Daniel A. Spitzer, Esq. Charles W. Maleomb, Esq. ‘The Guaranty Building 140 Pearl Steet, Suite 100 Buffalo, New York 14202-4040 (716) 856-4000 DOUGLAS H. ZAMELIS, ESQ. Attorney for Pettioners-Appellants 7629A Siate Highway 80 tov, New York 13326 (G15) 858.6002 TABLE OF CONTENTS PAGE PRELIMINARY STATEMENT. 1 BACKGROUND FACTS. H 2 A. WILMORITE SUBMITS AN APPLICATION TO THE TOWN BOARD ‘TO CONSTRUCT A MASSIVE CASINO AND RESORT FACILITY. 2 B. THE ENVIRONMENTAL SETTING OF THE CASINO COMPLEX SITE... ©. THE ENVIRONMENTAL REVIEW IDENTIFIES SEVERAL POTENTIALLY SIGNIFICANT ADVERSE ENVIRONMENTAL IMPACTS. D. THE TOWN BOARD FAILED TO TAKE A HARD LOOK AT THE RELEVANT AREAS OF ENVIRONMENTAL CONCERN, AND. FAILED TO SET FORTH ANY REASONED ELABORATION. WHATSOEVER... E. ACKNOWLEDGING THE TOWN BOARD'S FAILURE TO COMPLY WITH SEQRA, SPECIAL COUNSEL FOR THE TOWN DRAFTED A DOCUMENT ENTITLED “REASONS SUPPORTING THE DETERMINATION OF SIGNIFICANCE” AFTER PETITIONERS. COMMENCED THIS PROCEEDING; THIS DOCUMENT WAS, ‘NEITHER APPROVED NOR ISSUED BY THE TOWN BOARD. sn PETITIONERS COMMENCED THIS ARTICLE 78 PROCEEDING, AND SPECIAL TERM DISMISSED THE VERIFIED PETITION. 10 G._ WILMORITE HAS COMMENCED CONSTRUCTION OF THE CASINO PROJECT... ARGUMENT. : n POINT], PETITIONERS ARE ENTITLED TO A PRELIMINARY INJUNCTION ENIOINING CONSTRUCTION OF THE CASINO PROJECT PENDING ‘THE DETERMINATION OF THIS APPEAL. vol c. D. ‘CONCLUSION. ‘TABLE OF CONTENTS - cont'd PAGE PETITIONERS ARE LIKELY TO SUCCEED ON THE MERITS OF ‘THIS APPEAL. THE TOWN BOARD VIOLATED SEQRA BY FAILING TO TAKE A HARD LOOK AT THE RELEVANT AREAS OF ENVIRONMENTAL CONCERN AND SIMPLY DID NOT SET FORTH. ‘ANY WRITTEN, REASONED ELABORATION OF ITS DETERMINATION TO ISSUE A NEGATIVE DECLARATION, PETITIONERS WILL SUFFER IRREPARABLE HARM ABSENT A PRELIMINARY INJUNCTION. ‘THE BALANCE OF THE EQUITIES TIPS SHARPLY IN PETITIONERS’ FAVOR... ‘THE COURT SHOULD REQUIRE A NOMINAL UNDERTAKING. 3 3 35 ‘TABLE OF AUTHORITIES PAGE FEDERAL CASES. Amoco Prod. Co. v. Vill of Gambell, 480 US. $31 (1987).. 28 Environmental Defense Fund v. Tennessee Val. Authority, 468 F.2d 1164 (6th Cir. 1972) 29 League of Wier Defoe Be Monti Bidet Poet v. Conant 752 F.3d 755, 2014 US, Apo. LEXIS 8661 (9th C., May 8, 2014). Nextel of NY, Ine. v. City of Meunt Vernon, 361 F. Supp. 24.336 (SDNY. 2005). Pres. Coalition y. Fed. Transit Admin, 2001 US. Dist. LEXIS 24654 (W.D.N.Y. Jan. 23, 2001) sed Town of Brookhaven v. Sills Rd. Realty LLC, 2014 US. Dist, LEXIS 85202 (E.D.N.Y. June 23, 2014) .. 29 WATCH ater dation Conserv Or Hertge, inc). avs, (603 F.2d 310 (24 Cir. 1979)... 29 Stare Cases Aetna Ins. Co. v. Capasso, 7SN.Y.24 860 (1990). Badura v. Guell, 94 A.D.2d 972 (4th Dep't 1883). Broadway Triangle Community Coalition v Bloomberg, 35 Mise. 3d 167 (Sup. Ct, NY. County 2011) Chinese Staff & Workers Ass'n New York, 68 N.Y.3d, 359 (1986)... 2 Chrysler Corp. ». Fedders Corp, 63 AD.24 567 (1978)... ea sented Ciineighbors Coalition of Historie Carnegie Hill v. N.Y. City Landmarks Pres. Comm'n, ‘2N.Y34 727 (2004) a dietetic iit )RITIES PAGE Cito ual New York tat Dep't of Ent Conservation 184 Misc. 24 248 (Sup. Ct, Erie County 2000) 2s Coalition for Future of Stony Brook Vill. v. Reilly, 299 A.D.24 481 (2d Dep't 2002)... a 21,2 Daytop Vil. v Consolidated Edison Co. of NY, 61 A.D.2d 933 (Ist Dep't 1978) 3 Fernandez v. Planning Bd. of Pomona, 122 A,D.24 139 2d Dep't 1986) 13 Gardens Owners Carp.» 35th Ave. Apt. Corp., 91 A.D.3d 702 (2d Dep't 2012), 33 Group for South Fork, Inc. v. Wines, 190 A.D.24 794 (2d Dep't 1993). 18 HOMES ¥v. New York State Urban Dev. Corp., 69 A.D.2d 222 ($th Dep't 1979). ‘ 12 Holmes v. Brookhaven Town Planning Bd., 137 A.D.24 601 (2d Dep't 1988). 25 Kirk-Astor Drive Neighborhood Ass'n v. Town Bad, 106 A.D.24 868 4th Dep't 1984), appeal dismissed 66 N.Y.2d 896 (1985) weeonnn-26,27 Klein, Wagner & Morris v. Lawrence A. Klein, P.C., 186 AD2d 631 (1992) om ‘Margolies » Encounter, Ine. Margolies v Encounter, Inc., #2N.Y.24475 (1977). ‘Matter of Baker v Village of Elmsford, 70 A.D.34 181 (2d Dep"t 2009) = 114, 18 Mater of Milpond ets Ie» Town of Ute Zoning Ba. of Apes 142, AD.3d 804 (4d Dep't 2007). 16 Matter of Stop BHOD ». Cty of New York, 2 Mise. 3d 1135(A) (Sup. CL, N.Y. County 2009). 30 Maer of Tray Sana Gravel Cane» Town of Nass {82 AD.3d 1377 G4 Dep't 2011), 14,16 TABLE OF AUTHOR! cont’ NY, Gin Coaltiono Bnd Lead Poisoning In. Vllone, 100 N.Y.24 337 (2003) sss SPACE. y, Hurley, 291 A.D.2d 563 (2d Dep't 2002)... Sitvercup Studios, In. v Power Auth, 285 A.D.2d 598 (2d Dept 2001) Watch Hil! Homeowners Assn. Town Bd, 226 A.D.2d 1031 (34 Dep't 1996) reeves 24,25 West Branch Conservation Ass’nv. Planning Ba, 207 A.D.24 837 (2d Dep't 1994). 7 18 Westbury ». Department of Transp., 146 A.D.2d 578 (24 Dep't 1988). Iiamsbors Around he Brie Blok Assn. Gon, 223 A.D.24 64 (Ist Dep't 1996)... i 129,32 Wright. Lewis, 21 Mise. 3d 1120(A) (Sup. Ct, N.Y. County 2008).. 33 Stare Sravures NY. CPLR. § 6801 one NY. CPLR. § 6312) orn SH NY.CPLR § SSB esos n NY. RAC. PARE-MUT, WAG. & BREED. LAW §§ 1300(3), (5) (6) ReGutaTions NYCRR. § 617.41). NYCRR. § 617.160.. ONVRR.§ 617.100) onsen ENY.CRR.§617.700)4) ONY.CRR $617.1). ‘TABLE OF AUTHORITIES - cont'd PAGE GNY.CRR. §617.706K1), eae 7 2 GNY.CRR. §617.1eKIXi). - nD ONYERR § 6177001) ennai dh ONYCRR.§ 617.1609). 24 ONYCRR.§61720.. 8 ONYCRR § 182.5(6X6)ii) 2 NYCRR § 617.4 NYCRR § 617.1 )(1) Ai) NYCRR § 617.706K4) 13 ‘Orme AutHonrmes: (GERRARD, RUZOW, WEINBERG, ENVIRONMENTAL IMPACT REVIEW IN NEW YORK, § 3.05(3]fa) 7 se al GeaRano, RUZOW, WEINBERG, ENVIRONMENTAL IMPACT REVIEW INNEW YORK, § 3.05(3] [6] seen Dy 23,24 GeneanD, RUZOW, WEINBERG, ENVIRONMENTAL IMPACT REVIEW INNEW YORK, § 7.16(teIE~ o a bps /wwonw dee.ny gov/animals/9380 html bhupsvwworw.dee.ny govoutdoor’31112.html.. bnupsvsvorw.dee.ny.govroutdoor!5S687 html. bps /wworw.ltimes com/news/article_4069293e-903-1Led-ba2I-Bfe21aab798¢ html. bp: /wworw fs gow/northeast/planning/Montezamal PRELIMINARY STATEMENT Atthe dawn ofthe SEQRA era, Sate and loca officials rushed through approval ofthe Carrer Dome at Syracuse University on the strength ofa negative declaration of xvironmental significance. This Court rejected such an obvious violation of SEQRA's mandates and in doing £0 rete the “ard look” standard now embodied inthe SEQRA. procedures, See HOMES w Hew York State Urban Dew. Corp, 69 A.D.28 222 (th Dept 10975), Now before this Cour isa similarly rushed review, for a projet of even greater scale than the Carer Dome — a halfilion-dollar,450,000-phs 9. hotel and easino with 3,300 patkng spaces, and related infastucture —on the strength ofa review notable for its acknowledgment of multiple significant potential adverse impacts, but absent any consideration of those impacts. If Wilmore’ Lago Casino can pass muster with solely a negative declaration, then this Court should simply declare 10.M.E.S. overturned and SEQRA repealed. In return for milion of dollars under a Host Community Agreement, the Town of ‘Tyre Town Board (the “Tow Board”) approved the Lago Casino and hotel complex on an proximately £3-aere parcel offrmland, in rural, agricultural community, As the Town's special counsel acknowledged, the Town Board isued a Negative Declaration forthe most significant construction project inthe history ofthe Town, without providing a written, reasoned laboraton for its determination Peshaps that was because just afew weeks before, in ‘completing Pat 2 of the environmental assessment form (“EAF), the Town Board identified no less han ten areas that would real in significant adverse environmental impacts, while ignoring several others completely. ‘The Town Board filed to take a hard look a the relevant areas of environmental concer, failed to discuss what, if any, tigation was contemplated to ensure the impact ares it identified as potentially significant would not be, never reviewed the criteria for determining environmental significance, and did not provide any basis for its determination ‘whatsoever. The Town Board violated SEQRA’s most fundamental requirement and, as a result, the Negative Declaration should be annulled, and with it, the subsequent approval forthe casino project. ter Petteners commenced ths lawsuit challenging the Town Board's termination, the Tow Board's special counsel crafted a post-approval “attachment” to Part 3 ofthe EAF, purportedly showing that the Town Board took hard look atthe relevant areas of nviromental concern and containing the Town Board's wnten, reasoned elaboration forthe issuance ofthe negative deslaration. This document was never adopted or ssved by the Town Board and was oly email tothe Town lng after the decision had been made — in fact, onthe Aste thisproceting was commenced, Pettoners have demonstrated that, because ofthe Town Board’ blatant fuilure to comply with SEQRA, they are likely to succeed on the merits ofthis appeal. Absent a preliminary injunction, which would allow construction to move forward, Petitioners wil suffer irreparable harm. Petitioners have also demonstrated thatthe balance of the equities tips in ther favor. Thus, Petitioners are entitled toa preliminary injunction enjoining ‘construction ofthis massive casino development pending the determination ofthis appeal. BACKGROUND FACTS A. Wilmorite Submits An Application To The Town Board To Construct A Massive Casino And Resort Facility. In January, 2014, the Town Board adopted Local Law No. 1, authorizing Planned ‘Unit Development zoning districts within the Town of Tyre. Affirmation of Charles W. 2 Malcom, Esq, dated January 9, 2015 (‘Maleomb A"), Ex. E. Planned unit developmentis specifically authorized by Section 261-c ofthe New York Town Law and provides towns with Aesibilty in the application of zoning regulations to foster “creative architectural or planning concepts and open space preservation... in furtherance ofthe town comprehensive plan and zoning loal law or ordinance.” N-Y. TowN LAW § 261-. Local Law No.1 provided the procedural mechanism for planned unt development projects in Tyre and requires not only the approval ofa specie projec plan, but an amendment othe Town's zoning map, cresting a Planned Unit Development (“PUD”) Distict. (On orabout March 20,2014, Respondents Whitetail 414, LLC and Wilmore, Inc. (collectively, “Wilmorte) applied under the newly created planned unit development procedures fora 195,000 sq. gambling casino, a 256,000 sqft. hoe, a sic-story parking garage for approxinately 1,000 vehicles, and surface parking for approximately 2,300 vehicles, together with roads driveways, and other associated facilities (the “Casino Project” or “Casino Complex"). See Wilmorte’s letter application, Maleomb AfT, Ex. F. The Casino Project required a rezoning of approximately 83.4 acres of agricultural land toa Planned Unit Development Distt, together withthe approval of a development plan. With its aplication, Wilmorte submited par 1 ofthe full Bovironmental Assessment Form (*EAF"), together vith a report from its engineers providing supplemental information. See Malcomb Aff, Ex. G. B. The Eavironmental Seting Of The Casino Complex Site. “The Casino Projet would be constructed over two year in a curently rural, secluded, agricltural, and residential area located within a County.adopted, Satecentifed Agricultural District, created pursuant to Article 25-AA ofthe New York State Agriculture and 3 “Markets Law (the “Casino Complex Site). Construction of the Casino Project will eeate a significant change in community character, as approximately 83 acres of rural, agricultural land ‘will be transformed into a commercial tourist destination with a massive casino, a hotel anc departure from the existing characteristics ofthe locat ‘The Casino Complex Sites located near the neighboring Montezuma National Wildlife Refuge (“Montezuma or the “Wildlife Refuge”), which is a critical environmental resource for Petitioners and the surrounding community. The Wildife Refuge isa seven- ‘thousand acre wildlife preserve composed of swamps, pools and channels located mostly within the Town of Tyre and operated by the United States Fish and Wildlife Service. The Wildlife Refuge isa stopping-point for migratory birds and is home to six active bald eagle nests. The Wildlife Refuge “is situated inthe middle of one of the busiest bird migration routes on the Allantc Flyway. More than 240 species of birds can be found on the refuge, along with 43, species of mammals 15 species of reptiles, and 16 species of amphibians.” (hp: dee-ny-govioutdoot!$5687 html). Montezuma has played a key role in restoring the bald eagle population and “became the site ofthe world’s first bald eagle hacking tower.” (https/www.dee-ny-govisnimals/9380.himl). The Wildlife Refuge is vital to the continued restoration of the bld eagle population ‘The Wildlife Refuge is part of the 50,000-acre Montezuma Wetlands Complex, which includes the nearby Northen Montezuma Wildlife Management Area. (htp//vw.dee.ny govloutdoor/31112.huml). The federally and State-listed endangered Infiana bat “has been found on Howland’s Island in the NYSDEC Northern Montezuma WMA and 4 likely oecurs onthe refuge,” (htp://owe ws govlaortheastplnningMonteumal PDFIFinal¥<20Web2420Verion’ Chaper3 pif), which includes habitats supporting breeding oF critical miratory populations of several other State-tisted, endangered or threatened species (e.g, late sturgeon pied-illed gree, bald eagle, black tem, shor-eared ow, northem barrie, least bitem, peregrine faleon, sedge wren, and possibly common tem). ‘The Casino Complex Site is directly connected tothe Wildlife Refuge by the White Brook. 11s egainst this backdrop thatthe Town Board determined that a project ofthis ‘ype, size, and scale, to be constructed and operated ina rural, agricultural, and environmentally sensitive area, wll not have even one potentially significant adverse environmental impact. C. The Environmental Review Identifies Several Potentially Si Environmental Impacts. ificant Adverse ‘On March 20, 2014, the Town Board declared its intent to serve asthe lead agency for purroses ofthe SEQRA review and classified the Casino Project as a Type I action, which, pursuan:to 6 N.V.CRR,§ 6174(a(0) caries “he presumption ht tis likely to have a significant adverse impact onthe environment.” There, the Town Board assumed lead gency stats. The Town Board held public hearings on Wilmerit’sappistion on April 17, 2014 and May 12014, and discussed the Casino Project agin at its regularly monthly meeting ‘on May 15,2014. Affirmation of Virginia C. Robbins, Es, dated August 5, 2014 "Robbins AME"), $916, 9, 11, Maleomb A, Ex. H. (O1 May 15,2014, the Town Board acknowledged the large scope ofthe Casino Project and is significant adverse impacts in completing Part 2 ofthe AF. The Board determined tat there were several areas where a moderate-to-largeimpect onthe environment may occur, neluting: (D construction continuing for more than one year; (@) the creation of new water bodies; the use of herbicides and pesticides: (4 impacts on agricultural resources; (©) impacts on visual resources; (6 impacts on transportation; (© impacts on energy: (8) impacts on noise, odor, and light; (@yinconsisteney withthe community plan; and (10) impacts onthe community character. Maleomb Aff, Ex. In doing so the Town Board acknowledged the multiple ares where there may bea significant adverse environmental impact, requiring the preparation of an environmental impact statement. See 6 N.Y.CRR. § 617.7(). ‘atably absent rom the discussion here—and throughout the review—were impacts to the Wildlife Refuge. State-tsted endangered and threatened species ant species of special concer sent tthe Wildlife Refuge were ignored because thes species were determined not wo be resident atthe Casino Site Property; however, no consideration was given to offsite impact to these species. Thus, for example, nowhere in the review is tere an 6 ‘evaluation of construction impacts to bald eagle fledglings, or the potential impact of luring such, species to the ste by creation ofthe new water bodies. Only in acknowledging the potentially ious impact of pesticides and herbicides dd the Town acknowledge te crtal wildlife -setng in which the Casino Projest woul be placed, yet ha very analysis pretends none ofthe