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STATE OF NEW YORK
SUPREME COURT COUNTY OF SENECA
In the Matter of the Application for a Judgment
Pursuant to Article 78 of the Civil Practice Law
and Rules of:

DESIREE DAWLEY, JAMES DAWLEY, LYNN
BARBUTO, ROBERT BARBUTO, JAMES NEARPASS,
ASTRID NEARPASS, TODD M. WORDEN, LAURA A.
WORDEN, JONATHAN MORELLI and JANE MORELLI

Petitioners
v.

WHITETAIL 414, LLC, WILMORITE, INC., TOWN OF
TYRE TOWN BOARD, JAMES LEONARD and JEANNE
LEONARD

Respondents



VERIFIED PETITION

Index No.:

Hon.


PETITIONERS, by and through their attorney, Douglas H. Zamelis, Esq., allege for their
Verified Petition as follows:

INTRODUCTION

1. This proceeding is brought pursuant to Article 78 of the Civil Practice Law and
Rules to annul and vacate several June 12, 2014 determinations of respondent
Town of Tyre Town Board for failure to comply with, inter alia, the
Environmental Conservation Law and Public Officers Law in connection with the
approval of the application of Whitetail 414, LLC and or Wilmorite, Inc. to
amend the Town of Tyre Zoning Law to designate approximately 83.4 acres of
land (the “Casino Complex Site”) in the Town of Tyre, now or formerly owned
by James and Jeanne Leonard, as a Planned Unit Development and allow the

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construction and operation of a 195,000 square foot gambling casino, a 256,000
square foot hotel, a 6 story parking garage for parking of approximately 1,000
vehicles, and surface parking for approximately 2,300 vehicles, along with
dumpsters, roads and drives, and other associated facilities (the “Casino Project”).
PETITIONERS
2. Petitioners James and Desiree Dawley (“Mr. and Mrs. Dawley”) own and are in
the process of constructing a residence at their real property located at 1938 Chase
Road, Waterloo, New York. Mr. and Mrs. Dawley’s real property is located
adjacent to the Casino Complex Site as the northern boundary of the Casino
Complex Site is also the southern boundary of Mr. and Mrs. Dawley’s property.
Because of the close proximity of their property and their residence to the Casino
Complex Site, Mr. and Mrs. Dawley would experience a significant increase in
traffic in and around their neighborhood, noise and dust from construction,
nighttime lighting, and odors from restaurants and buses. Mr. and Mrs. Dawley
are concerned that the construction and operation of a large casino complex would
result in a reduction of the birds and other wildlife they presently enjoy watching
on their 18.6 acre parcel, and an increase in trash and litter in and around their
property and neighborhood. Mr. and Mrs. Dawley are also concerned that
trespassers from the Casino Complex Site would enter their property and that they
and their children would be at increased risk for personal injury or bodily harm.
Mr. and Mrs. Dawley are further concerned that the construction and operation of
a large casino complex would substantially and permanently alter the character of

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their rural and agricultural neighborhood and community.
3. Petitioners Robert and Lynn Barbuto (“Mr. and Mrs. Barbuto”) reside at 1843
Chase Road, Waterloo, New York. Mr. and Mrs. Barbuto live in close proximity
to the Casino Complex Site and would be impacted by the increased traffic on
local roads. White Brook, which begins on the Casino Complex Site, flows over
Mr. and Mrs. Barbuto’s property and they are concerned that flooding and
overflow would contaminate groundwater and their only drinking water supply.
Mr. and Mrs. Barbuto fear that the large Casino Complex Site and all the lighting
for buildings roadways and parking areas would light up their nighttime sky,
interfere with their seeing the stars and the Milky Way, and cause disruption to
their sleep. Mr. and Mrs. Barbuto fear that the increase in construction and casino
traffic would make their local roads more dangerous and increase the likelihood
that they or someone in their family would be in a traffic accident. Mrs. Barbuto
is a member of the clergy who maintains a chapel and sanctuary on their property
for services, weddings, baptisms, funerals, and spiritual meetings, and she is
concerned that the construction and operation of the casino would forever destroy
the existing peace and tranquility of their property, her chapel and her sanctuary.
Mr. and Mrs. Barbuto are worried that the casino would result in additional
commercial development in and around their neighborhood, an increase in
criminal activity, and a permanent alteration to the character of their presently
quiet and rural community.
4. Petitioners James and Astrid Nearpass (“Mr. and Mrs. Nearpass”) reside at 1987

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Chase Road, Waterloo, New York. Mr. and Mrs. Nearpass reside in close
proximity to and own property which borders the Casino Complex Site. They are
concerned that the large amounts of car, bus, truck and construction traffic
resulting from the casino would interfere with their ability to travel in and around
their neighborhood and would increase their travel time other locations. Mr. and
Mrs. Nearpass are concerned that the construction and operation of the casino
would result in an increase in criminal activity in and around their neighborhood,
and they are concerned that they, other family members, and their real and
personal property would be at increased risk. Mr. and Mrs. Nearpass are
concerned that they would experience an increase in dust and odors from
construction and operation of the casino complex. Mr. and Mrs. Nearpass
presently enjoy the seclusion and rural, agricultural, and residential character of
their Chase Road neighborhood, and fear that the casino complex would spur
more commercial development in their neighborhood, such as motels, gas
stations, and restaurants. James Nearpass is a farmer who has farmed the lands
around the Casino Complex Site for over 50 years and he is familiar with the
drainage characteristics of the Casino Complex Site and other nearby lands.
James Nearpass is concerned that the proposed stormwater management facilities
proposed for the Casino Complex Site would not be adequate to contain
stormwater from large rainfall events, and that runoff would be conveyed into
White Brook and impact downstream farmlands and eventually Montezuma
National Wildlife Refuge Area.

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5. Todd M. Worden and Laura A. Worden (“Mr. and Mrs. Worden”) own two houses
on Chase Road and reside at 1891 Chase Road, Waterloo, New York. Mr. and
Mrs. Worden reside in close proximity to the Casino Complex Site and they are
anxious that the construction and operation of the casino would dramatically
increase the amount of traffic in and around their neighborhood, going by their
house, turning around in their driveway, and littering on their property. Mr. and
Mrs. Worden plan to start a family but now they fear that the increase in traffic in
and around their neighborhood from the Casino Project would likewise increase
the risk that they or someone in their family will be harmed or hurt, in a traffic
accident or otherwise. The increase in traffic would also increase their commute
times, and make travelling in and around their neighborhood a hassle. Mr. and
Mrs. Worden enjoy being outside in the evening, and they fear that their
neighborhood would be lit up 24 hours a day, seven days a week, despite the use
of “shoe box” and “cut off” lights by the developer. Mr. and Mrs. Worden also
fear that the casino and the large number of people it would draw to the area
would encourage additional commercial development and forever change the
quiet, rural, residential, and agricultural character of their community and
neighborhood.
6. Petitioners Jonathan and Jane Morelli (“Mr. and Mrs. Morelli”) reside at 1077
Route 414, Waterloo, New York. Mr. and Mrs. Morelli reside on real property
adjacent to the Casino Complex Site. The southern boundary of Mr. and Mrs.
Morelli’s property is also the northern boundary of the Casino Complex Site

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property. Mr. and Mrs. Morelli would literally be the next door neighbors to the
Casino Complex Site. Mr. and Mrs. Morelli’s residence is located only several
hundred feet from the main driveway to the Casino Complex Site and they fear
that their lives will be overwhelmed by the large amounts of traffic entering and
exiting, and activity and noise at the Casino Complex Site during construction and
especially afterward when the casino, hotels, and restaurants open for business.
Mr. and Mrs. Morelli fear that the casino complex will destroy the privacy and
seclusion that they presently treasure. Mr. and Mrs. Morelli decry the destruction
of the drumlin, a unique geological feature on the Casino Complex Site, to build
parking lots for casino-goers, and they are concerned that their well, which is the
one and only source of their drinking water, will become polluted by the
contaminated runoff and “stormwater management facility” proposed just yards
from their property boundary. Mr. and Mrs. Morelli like to spend their summer
evenings outside on their front porch instead of in front of a television, and they
are very concerned that the stray light from the traffic and Casino Complex Site
would destroy the nighttime darkness they enjoy and give them problems
sleeping. Walking is important physical exercise for Mr. Morelli, and he and
Mrs. Morelli will no longer be able to safely take walks on the road in front of
their house for fear of being run over by casino traffic. Mr. and Mrs. Morelli fear
that the noise from construction and construction vehicles would make it difficult
to hear each other, and that annoying back up beepers will fill their neighborhood
whenever a construction or delivery vehicle is in reverse. Mr. and Mrs. Morelli

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are concerned that dust from construction would enter and cover their house, their
lawn, their vehicles, their belongings, and everything outside. Mr. and Mrs.
Morelli have always been able to leave their doors unlocked but they fear that the
construction and operation of the casino would lead to an increase in crime and
eventually other commercial projects seeking to take advantage of the large
amounts of casino traffic in their neighborhood, and would ultimately lead to the
destruction of the safe, quiet, rural character of their community and
neighborhood.
7. By virtue of their close proximity to the Casino Complex Site, and their direct
exposure to the several resulting adverse environmental impacts, including but not
limited to traffic, noise, dust, odors, light pollution, loss of agricultural land, and a
change in the character of their neighborhood and community, all of the
petitioners are harmed in a manner different in kind and degree than the public at
large, and have the requisite standing to commence and maintain this proceeding.
RESPONDENTS
8. Respondent Whitetail 414, LLC (“Whitetail”) is, upon information and belief, a
domestic limited liability company with a place of business at 1265 Scottsville
Road, Rochester, New York. Whitetail was the applicant to the Town of Tyre
Town Board for, inter alia, the creation of a Planned Unit Development District
and Zoning Map Amendment of an approximately 83.4 acre parcel and approvals
for development of the Casino Project.
9. Respondent Wilmorite, Inc. (“Wilmorite”) is, upon information and belief, a

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domestic business corporation with a principal executive office at 1265 Scottsville
Road, Rochester, New York. Wilmorite is, upon information and belief, an
affiliate of Whitetail and is a party to a “Host Community Agreement” in
connection with the Casino Project.
10. Respondent Town of Tyre Town Board (the “Board”) is the duly elected
legislative body of the Town of Tyre, Seneca County, New York, with a place of
business at 616 Lamb Road, Seneca Falls, New York. At its meeting held June
12, 2014, the Board adopted six resolutions in connection with the approval of the
Casino Project.
11. Respondents James and Jeanne Leonard (“Mr. and Mrs. Leonard”), upon
information and belief, reside at 3394 Woodworth Road Geneva, New York. Mr.
and Mrs. Leonard are or were the record owners of the Casino Project Site.
VENUE
12. Venue for this Article 78 proceeding to review the determinations of the Board is
proper in Seneca County because the determinations complained of were made in
Seneca County.
BACKGROUND
13. Upon information and belief, Whitetail and or Wilmorite submitted an application
to the Board for the creation of a Planned Unit Development District, zoning map
amendment and other approvals for the Casino Complex Site to allow for the
construction and operation Casino Project (the “Application”).
14. Upon information and belief, as part of the Application and as required by the

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State Environmental Quality Review Act (“SEQRA”), Whitetail and or Wilmorite
submitted Part 1 of a SEQRA Full Environmental Assessment Form (the “Part 1”)
dated March 17, 2014 in connection with the Casino Project.
15. Upon information and belief, based on data and information contained in the Part
1 prepared by Whitetail and or Wilmorite, the Board characterized the Casino
Project as a Type I Action and according to 6 NYCRR Section 617.4(a)(1), “the
fact that an action or project has been listed as a Type I action carries with it the
presumption that it is likely to have a significant adverse impact on the
environment and may require an EIS.”
16. Upon information and belief, the Board held a public hearing on the Application
on April 17, 2014, and a public hearing on the zoning map amendment on May 1,
2014.
17. Upon information and belief, when the Board held its public hearings on April 17,
and May 1, 2014, the Application was not complete in accordance with the
SEQRA regulations at 6 NYCRR Section 617.3(c) inasmuch as the Board had not
yet issued a Negative Declaration or accepted a Draft Environmental Impact
Statement, and as a result, the Board unreasonably deprived petitioners and the
public of the ability to review a complete and sufficient application prior to being
called on to make comments at the public hearings.
18. Upon information and belief, a draft Part 2 of a SEQRA Full Environmental
Assessment Form (the “Draft Part 2”) prepared in connection with the Casino
Project identified several potential moderate to large adverse environmental

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impacts, including impacts to surface water, plants and animals, agricultural
resources, aesthetic resources, transportation, energy, nighttime lighting,
community plans, and community character.
19. Upon information and belief, the Casino Complex Site contains a cemetery or
burial ground, which was not identified in the Draft Part 2, or ever considered by
the Board as a potential impact to cultural or historic resources.
20. Upon information and belief, the Casino Complex Site also contains a drumlin, a
unique glaciological landform, which was not identified in the Draft Part 2, or
ever considered by the Board as a potential impact to land, geologic features, or
aesthetic resources.
21. The Board reviewed and discussed the Draft Part 2 at its May 15, 2014 meeting,
but did not make the Draft Part 2 available to petitioners or the public at or prior
to the May 15, 2014 meeting as required by Public Officers Law Section 103(e).
22. Upon information and belief, the Board again reviewed the Draft Part 2 at its June
12, 2014 meeting, but the Draft Part 2 was not made available to petitioners or the
public at or prior to the June 12, 2014 meeting as required by Public Officers Law
Section 103(e).
23. Upon information and belief, the Board never adopted a resolution approving or
accepting the Draft Part 2.
24. Upon information and belief, at its June 12, 2014 meeting, the Town Board
adopted a written resolution finding that the Casino Project did not have the
potential for one single, significant adverse environmental impact and issuing a

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Negative Declaration pursuant to SEQRA in connection with the Casino Project
(“The SEQRA Resolution”), thereby terminating the SEQRA review.
25. Upon information and belief, the Board did not make the SEQRA Resolution
available to petitioners or the public at or prior to the June 12, 2014 meeting as
required by Public Officers Law Section 103(e).
26. Upon information and belief, prior to adopting the SEQRA Resolution on June
12, 2014, the Board was led by its consultants, and the Board members
themselves never undertook or engaged in any discussion concerning whether the
several adverse environmental impacts identified on the Draft Part 2 should be
considered significant or not.
27. Upon information and belief, prior to adopting the SEQRA Resolution on June
12, 2014, the Board failed to identify potential environmental impacts from the
Casino Project including impacts to cultural and historical resources, land,
geological features or aesthetic resources.
28. Upon information and belief, prior to adopting the SEQRA Resolution on June
12, 2014, the Board never prepared, caused to be prepared, reviewed, accepted or
adopted a Part 3 of the Full Environmental Assessment Form (“FEAF”) as
required by 6 NYCRR Sections 617.7(b)(2) and 617.20.
29. Upon information and belief, prior to adopting the SEQRA Resolution on June
12, 2014, the Board failed to take a “hard look” at the several potential adverse
environmental impacts posed by the Casino Project and identified on the Draft
Part 2 as required by 6 NYCRR 617.7(b)(3) and H.O.M.E.S. v New York State

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Urban Dev. Corp., 69 AD2d 222 (4
th
Dept. 1979) (“H.O.M.E.S.”).
30. Upon information and belief, the Board’s SEQRA Resolution finds only that “The
Action will not result in any significant adverse environmental impacts and a
‘negative declaration’ . . . shall be prepared, filed and published pursuant to
SEQRA”, however the Board didn’t make a single finding of fact at its June 12,
2014 meeting or any other time with respect to the environmental impacts posed
by the Casino Project and identified on the Draft Part 2, and the SEQRA
Resolution provides absolutely no written, reasoned elaboration or explanation
whatsoever as to why the several moderate to large environmental impacts
identified on the Draft Part 2 are or are not significant as required by 6 NYCRR
617.7(b)(4) and H.O.M.E.S.
31. In contrast to the SEQRA Resolution, the Board provided twelve reasons
supporting its approval of the Casino Complex site development plan in the
Development Plan Resolution.
32. Upon information and belief, the Board never published notice of its Type I
Negative Declaration in the Statewide Environmental Notice Bulletin as required
by 6 NYCRR Section 617.12(c)(1).
33. Upon information and belief, immediately following the issuance of the SEQRA
Resolution, and at its meeting held June 12, 2014, the Board adopted a Resolution
approving the Development Plan (the “Development Plan Resolution”) for the
Casino Project.
34. Upon information and belief, the Board did not make the Development Plan

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Resolution available to petitioners or the public at or prior to the June 12, 2014
meeting as required by Public Officers Law Section 103(e).
35. Upon information and belief, at its meeting held June 12, 2014, the Board adopted
a Resolution adopting Local Law #3 of 2014 amending the Town of Tyre Zoning
Law in connection with the Casino Project (the “Zoning Amendment
Resolution”).
36. Upon information and belief, the Board did not make the Zoning Amendment
Resolution available to petitioners or the public at or prior to the June 12, 2014
meeting as required by Public Officers Law Section 103(e).
37. Upon information and belief, at its meeting held June 12, 2014, the Board adopted
a Resolution approving the Site Plan in connection with the Casino Project (the
Site Plan Resolution”).
38. Upon information and belief, the Board did not make the Site Plan Resolution
available to petitioners or the public at or prior to the June 12, 2014 meeting as
required by Public Officers Law Section 103(e).
39. Upon information and belief, at its meeting held June 12, 2014, the Board adopted
a Resolution approving the Host Community Agreement in connection with the
Casino Project (the “Host Community Agreement Resolution”).
40. Upon information and belief, the Board did not make the Host Community
Agreement Resolution available to petitioners or the public at or prior to the June
12, 2014 meeting as required by Public Officers Law Section 103(e).
41. Upon information and belief, at its meeting held June 12, 2014, the Board adopted

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a Resolution in Support of the Gaming Facility in connection with the Casino
Project (the “Gaming Facility Resolution”).
42. Upon information and belief, the Board did not make the Gaming Facility
Resolution available to petitioners or the public at or prior to the June 12, 2014
meeting as required by Public Officers Law Section 103(e).
AS AND FOR A FIRST CAUSE OF ACTION
(Failure to Hold Hearing on Complete Application)
43. Petitioners repeat and reallege each and every allegation set forth in paragraphs 1
through 42 hereinabove.
44. The SEQRA regulations at 6 NYCRR Section 617.3(c) provide that “An
application for agency . . . approval of a Type I or Unlisted action will not be
complete until: (1) a negative declaration has been issued; or (2) until a draft EIS
has been accepted by the lead agency as satisfactory with respect to scope, content
and adequacy”.
45. Municipal Home Rule Law Section 20(5) and Town Law Section 264(1) both
required that the Board hold a public hearing prior to adopting the Zoning
Amendment Resolution.
46. The Board held its April 17 and May 1, 2014 public hearings on an incomplete
application because the Board did not adopt the SEQRA Resolution issuing the
Negative Declaration until June 12, 2014.
47. Petitioners and the public were substantially prejudiced because they were called
on to provide comments at public hearings before the application was complete

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and when they did not have access to basic environmental information from a
Negative Declaration or a Draft Environmental Impact Statement.
48. By holding its public hearings prior to the Application being complete in
accordance with the SEQRA regulations, the Board failed to strictly comply with
SEQRA, failed to perform a duty enjoined upon it by law, proceeded in excess of
jurisdiction, and the Board’s public hearings were therefore made in violation of
lawful procedure, and its several determinations to, inter alia, amend the Town of
Tyre Zoning Law and approve the proposed Casino Project were affected by error
of law, arbitrary and capricious, an abuse of discretion, and the Zoning
Amendment Resolution and Development Plan Resolution should be annulled and
vacated ab initio.
AS AND FOR A SECOND CAUSE OF ACTION
(Failure to Complete Full Environmental Assessment Form)

49. Petitioners repeat and reallege each and every allegation set forth in paragraphs 1
through 48 hereinabove.
50. Pursuant to 6 NYCRR Section 617.6(a)(2), Type I actions require completion of
all parts of the FEAF, including Part 1, Part 2, and also Part 3 if any
environmental impact identified in Part 2 is characterized as a potential moderate
to large impact.
51. Upon information and belief, the Board failed to approve by resolution Part 2 of
the FEAF, and failed to even prepare a Part 3 of the FEAF, and therefore the
Board never properly determined whether the several environmental impacts

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identified in the Draft Part 2 that could result from the Casino Project were or
were not significant.
52. By failing to properly complete all Parts of the FEAF for the Casino Project, the
Board failed to strictly comply with SEQRA, failed to perform a duty enjoined
upon it by law, proceeded in excess of jurisdiction, and the Board’s determination
to approve adopt the SEQRA Resolution and issue the Negative Declaration was
therefore made in violation of lawful procedure, was affected by error of law, was
arbitrary and capricious, was an abuse of discretion, and the SEQRA Resolution,
the Development Plan Resolution, the Zoning Amendment Resolution, the Site
Plan Resolution, the Host Community Agreement Resolution, and Gaming
Facility Resolution should be annulled and vacated ab initio.
AS AND FOR A THIRD CAUSE OF ACTION
(Failure to Reasonably Identify Relevant Environmental Impacts)
53. Petitioners repeat and reallege each and every allegation set forth in paragraphs 1
through 52 hereinabove.
54. The SEQRA regulations at 6 NYCRR Section 617.7(b)(2) require that prior to
making a determination of significance, the Board was required to identify
relevant areas of environmental concern in connection with the Casino Project
and the Casino Complex Site.
55. Upon information and belief, the Casino Complex Site contains a cemetery or
burial ground, and a drumlin.
56. Upon information and belief, the Board failed to identify impacts from the

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Casino Project to land, geologic forms, cultural or historic resources or aesthetic
resources.
57. By failing to identify all relevant areas of environmental concern in connection
with the Casino Project and the Casino Complex Site, the Board failed to strictly
comply with SEQRA, failed to perform a duty enjoined upon it by law, proceeded
in excess of jurisdiction, and the Board’s determination to approve adopt the
SEQRA Resolution and issue the Negative Declaration was therefore made in
violation of lawful procedure, was affected by error of law, was arbitrary and
capricious, was an abuse of discretion, and the SEQRA Resolution, the
Development Plan Resolution, the Zoning Amendment Resolution, the Site Plan
Resolution, the Host Community Agreement Resolution, and Gaming Facility
Resolution should be annulled and vacated ab initio.
AS AND FOR A FOURTH CAUSE OF ACTION
(Failure to Take “Hard Look” at Identified Environmental Impacts)

58. Petitioners repeat and reallege each and every allegation set forth in paragraphs 1
through 57 hereinabove.
59. The Casino Project is a Type I action and pursuant to SEQRA is therefore an
action which carries a presumption that it will have significant adverse
environmental impacts.
60. The SEQRA regulations at 6 NYCRR Section 617.7(b)(3) required the Board to
“thoroughly analyze the identified relevant areas of environmental concern to
determine if the action may have a significant adverse impact on the environment”.
61. The Draft Part 2 reviewed by the Board at its May 15 and June 12, 2014 meetings

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identified several adverse environmental impacts in connection with the Casino
Project and the Casino Complex Site, including impacts to surface water, plants and
animals, agricultural resources, aesthetic resources, transportation, energy,
nighttime lighting, community plans, and community character.
62. The Board failed to prepare or complete Part 3 of the FEAF as required by 6
NYCRR Sections 617.7(b)(2) and 617.20.
63. The Board never undertook or engaged in any discussion or evaluation of whether
the several adverse environmental impacts identified in the Draft Part 2 were
significant or not.
64. The Board failed to overcome or rebut the Type I action’s presumption of adverse
environmental impact.
65. By failing to take a “hard look” at the several adverse environmental impacts
identified in the Draft Part 2 in connection with the Casino Project and the Casino
Complex Site, the Board failed to strictly comply with SEQRA, failed to perform
a duty enjoined upon it by law, and proceeded in excess of jurisdiction, and the
Board’s determination to issue the Negative Declaration was therefore made in
violation of lawful procedure, was affected by error of law, was arbitrary and
capricious, was an abuse of discretion, and the SEQRA Resolution, the
Development Plan Resolution, the Zoning Amendment Resolution, the Site Plan
Resolution, the Host Community Agreement Resolution, and Gaming Facility
Resolution should be annulled and vacated ab initio.


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AS AND FOR A FIFTH CAUSE OF ACTION
(Failure to Set Forth Determination of Significance in Written Form Containing
Reasoned Elaboration)

66. Petitioners repeat and reallege each and every allegation set forth in paragraphs 1
through 65 hereinabove.
67. Pursuant to 6 NYCRR Section 617.7(b)(4), the Board was required to “set forth its
determination of significance in a written form containing a reasoned elaboration, and
providing reference to any supporting documentation”.
68. Pursuant to 6 NYCRR Section 617.7(a)(2), in order “to determine that an
[Environmental Impact Statement] will not be required for an action, the lead agency
must determine either that there will be no adverse environmental impacts or that the
identified adverse environmental impacts will not be significant”.
69. Upon information and belief, the Board failed to make or provide any written
findings of fact concerning the significance of potential environmental impacts
from the Casino Project, and failed to provide any written reasoned elaboration or
explanation in its SEQRA Resolution as to why the several adverse environmental
impacts from the Casino Project and identified in the Draft Part 2 were not
significant.
70. The SEQRA Resolution in connection with the Casino Project likewise makes no
reference to any supporting documentation.
71. By failing to set forth its determination of significance in a written form
containing a reasoned elaboration, and failing to reference any supporting
documentation, the Board failed to strictly comply with SEQRA, failed to

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perform a duty enjoined upon it by law, and proceeded in excess of jurisdiction,
and the Board’s determination to issue the Negative Declaration was therefore
made in violation of lawful procedure, was affected by error of law, was arbitrary
and capricious, was an abuse of discretion, and the SEQRA Resolution, the
Development Plan Resolution, the Zoning Amendment Resolution, the Site Plan
Resolution, the Host Community Agreement Resolution, and Gaming Facility
Resolution should be annulled and vacated ab initio.
AS AND FOR A SIXTH CAUSE OF ACTION
(Failure to Publish Notice of Type I Negative Declaration in ENB)
72. Petitioners repeat and reallege each and every allegation set forth in paragraphs 1
through 71 hereinabove.
73. The SEQRA regulations at 6 NYCRR Section 617.12(c)(1) require that notice of
a Negative Declaration for a Type I action must be published in the statewide
Environmental Notice Bulletin (“ENB”).
74. Upon information and belief, as of the date of the verification of this pleading,
notice of the Type I Negative Declaration for the Casino Project had not been
published in the ENB.
75. By failing to publish notice of its Type I Negative Declaration for the Casino
Project in the ENB, the Board failed to strictly comply with SEQRA, and failed to
perform a duty enjoined upon it by law, and the Board’s determination to issue
the Negative Declaration was therefore made in violation of lawful procedure,
was affected by error of law, was arbitrary and capricious, was an abuse of

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discretion, and the SEQRA Resolution, the Development Plan Resolution, the
Zoning Amendment Resolution, the Site Plan Resolution, the Host Community
Agreement Resolution and Gaming Facility Resolution, should be annulled and
vacated ab initio
AS AND FOR A SEVENTH CAUSE OF ACTION
(Failure to Make Records Available Prior to or at Meeting)
76. Petitioners repeat and reallege each and every allegation set forth in paragraphs
1 through 75 hereinabove.
77. Public Officers Law Section 103(e) requires that:
Agency records available to the public pursuant to article six of this chapter,
as well as any proposed resolution, law, rule, regulation, policy or any
amendment thereto, that is scheduled to be the subject of discussion by a
public body during an open meeting shall be made available, upon
request therefor, to the extent practicable as determined by the agency
or the department, prior to or at the meeting during which the records will be
discussed.

78. The Board discussed the Draft Part 2 at its May 15 and June 12, 2014 meetings,
and the SEQRA Resolution, the Development Plan Resolution, the Zoning
Amendment Resolution, the Site Plan Resolution, the Host Community
Agreement Resolution, and Gaming Facility Resolution at its June 12, 2014
meeting.
79. Upon information and belief, the Board did not make copies of the Draft Part 2,
the SEQRA Resolution, the Development Plan Resolution, the Zoning
Amendment Resolution, the Site Plan Resolution, the Host Community
Agreement Resolution, or Gaming Facility Resolution available to petitioners or

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the public for their request at or prior to the meetings at which they were
discussed in public session.
80. Because petitioners and the public did not have access to the SEQRA Resolution,
the Development Plan Resolution, the Zoning Amendment Resolution, the Site
Plan Resolution, the Host Community Agreement Resolution, or Gaming Facility
Resolution, petitioners were prejudiced as they were not able to reasonably
observe or follow the discussion concerning those records.
81. By failing to make copies of the Draft Part 2, the SEQRA Resolution, the
Development Plan Resolution, the Zoning Amendment Resolution, the Site Plan
Resolution, the Host Community Agreement Resolution or Gaming Facility
Resolution available to petitioners or the public for their request at or prior to the
meetings, the Board failed to perform a duty enjoined upon it by law, and
proceeded in excess of jurisdiction, and the Board’s determinations to adopt the
SEQRA Resolution, the Development Plan Resolution, the Zoning Amendment
Resolution, the Site Plan Resolution, the Host Community Agreement Resolution
and Gaming Facility Resolution were therefore made in violation of lawful
procedure, were affected by error of law, were arbitrary and capricious, were an
abuse of discretion, and the SEQRA Resolution, the Development Plan
Resolution, the Zoning Amendment Resolution, the Site Plan Resolution, the Host
Community Agreement Resolution and Gaming Facility Resolution should be
annulled and vacated ab initio
WHEREFORE, petitioners respectfully pray that this Court issue a judgment granting

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this verified petition, and awarding judgment to the petitioners and against the
respondents as follows:
1. Annulling and vacating respondent Town of Tyre Town Board’s June 12, 2014
SEQRA Resolution and Negative Declaration in connection with the Casino Project;
2. Annulling and vacating the Town of Tyre Town Board’s June 12, 2014 Development
Plan Resolution in connection with the Casino Project;
3. Annulling and vacating the Town of Tyre Town Board’s June 12, 2014 Zoning
Amendment Resolution in connection with the Casino Project;
4. Annulling and vacating the Town of Tyre Town Board’s June 12, 2014 Site Plan
Resolution in connection with the Casino Project;
5. Annulling and vacating the Town of Tyre Town Board’s June 12, 2014 Host
Community Agreement Resolution in connection with the Casino Project;
6. Annulling and vacating the Town of Tyre Town Board’s June 12, 2014 Gaming
Facility Resolution in connection with the Casino Project;
7. Awarding petitioners’ their reasonable attorney’s fees and costs in connection with
their Open Meetings Law claims; and
8. Granting such other and further relief as the Court may deem just, equitable and
proper, and the costs and disbursements of this proceeding.





24

Dated: Springfield Center, New York
July 11, 2014


By:

___________/s/_________________
Douglas H. Zamelis, Esq.
Attorney for Petitioners
7629A State Highway 80
Cooperstown, New York 13326
Tel.: (315) 858-6002
Fax: (315) 858-7111































25

ATTORNEY’S VERIFICATION


STATE OF NEW YORK )
) ss.:
COUNTY OF OTSEGO )

Douglas H. Zamelis, Esq., being duly sworn, deposes and says that he is an attorney in
good standing admitted to practice in the Courts of New York State and that he is attorney of
record for the Petitioners in the within proceeding; that deponent has read the foregoing Verified
Petition and knows the contents thereof; and that the same is true to deponent’s own knowledge,
except as to the matters therein stated to be alleged on information and belief, and that as to those
matters deponent believes them to be true. Deponent further says that the reason this
Verification is made by deponent and not by the Petitioners is that the Petitioners are not in the
County where deponent maintains his law office.
The grounds of deponent’s belief as to all matters not stated upon deponent’s knowledge
are as follows: review of public records and recordings, and discussions with Petitioners.


_____________/s/____________________
DOUGLAS. H. ZAMELIS, ESQ.

Sworn to before me this
11
th
day of July, 2014



Notary Public