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Index No.: 2014-3552


Hon. Richard E. Sise
York Religious Corporation,



Daniel J. Tuczinski, Esq.
Attorneys for Petitioners
54 State Street, Suite 803
Albany, New York 12207
(518) 463-3990

Petitioners respectfully submit this memorandum of law in opposition to the motion by
the City Respondents, which seeks dismissal of the Verified Petition/Complaint in this action,
which challenges the Citys sale of a parcel of prime real property located on Broadway in
Saratoga Springs for less than fair market value based upon private negotiations and a deceptive
and fraudulent RFP. This matter is brought by three taxpayers of the City of Saratoga Springs
who believe that the transaction is illegal, violates the State Constitution, the City Charter, the
General City Law, the Municipal Home Rule Law, the public trust doctrine, and the State
Environmental Quality Review Act.

The illegality of the transaction is currently being

investigated by the Public Integrity Bureau of the Attorney Generals office, and Petitioners
herein have also asserted a claim pursuant to N.Y. General Municipal Law 51.
Because the claims are not time-barred, Petitioners have standing, and the
Petition/Complaint states causes of action, the Court must deny the City Respondents motion in
its entirety.

Petitioners Have Standing to Challenge the Illegal Waste of Public Resources by the
City Respondents.
Respondents assert that Petitioners lack standing to assert the Article 78 claims. In doing

so, Respondents generically refer to the Article 78 claims, without addressing the underlying
nature of those claims. But the Article 78 claims asserted in the Verified Petition seek to cancel
the transactions as illegal based upon the City disposing of its property for less than fair value,
using a process that is illegal, and as being contrary to the Citys responsibility under the public

trust doctrine. These same errors comprise a part of the basis for Petitioners claim under
General Municipal Law 51. Respondents do not challenge Petitioners standing under General
Municipal Law 51, and therefore, have waived any objection to Petitioners standing to
proceed under that statute (CPLR 3211 [a] [3], [e]; see Ford v. New York State Racing &
Wagering Bd., 107 AD3d 1071, 1076 n.6 [3d Dept 2013]; Provident Bay Road, LLC v.
NYSARC, Inc., 117 AD3d 1356, 1358 [3d Dept 2014]). Since Petitioners have taxpayer
standing, and the Article 78 claims are premised on many of the same facts on which their
taxpayer action is premised, Petitioners have standing to assert the Article 78 claims.
Respondents position that Petitioners lack standing to challenge the ill-advised method
by which Respondents chose to market1 the Collamer lot is contradicted by Oyster Bay
Associates, L.P. v. Town of Oyster Bay (2013 N.Y. Misc. LEXIS 4888 [Sup. Ct., Suffolk County
October 9, 2013]). There, the Court held that the interests of justice requires recognition of
Taubmans standing. Taubman is tax-paying resident of the Town. It is clear that the public
interest would be subverted if no one were found to have standing to challenge the planned sale
of municipal real property (id.). The City Defendants fail to demonstrate why the same rule
should not apply here, and in apparent recognition that the same rule should apply here, they
simply claim that this Court should ignore Oyster Bay Associates, L.P.
Regardless of whether the Court concurs with the result in Oyster Bay Associates, L.P.,
standing has been granted absent personal aggrievement where the matter is one of general
public interest (Police Conference of New York, Inc. v. Municipal Training Council, 62 AD2d
416 [3d Dept 1978]). [T]he preparation of specifications, advertising of bids and awarding
contracts for a public project is a matter of acknowledged public interest which relieves the

The term market here is used very looselythere was no marketing of the lot other than the private
negotiations between City officials and persons acting on behalf of Mr. Aronson.

petitioner of the obligation to show that it is an aggrieved party or that it has any special interest
(Albert Elia Building Co. v. New York State Urban Dev. Corp., 54 AD2d 337, 342 [4th Dept
1976]). In fact, the Court in General Building Contractors of N.Y. State v. County of Oneida (54
Misc2d 260 [Sup. Ct., Oneida County 1967]) stated: An article 78 proceeding such as the one
before this court may be instituted by one who is a citizen, resident and taxpayer even though
there is no personal grievance or personal interest in the outcome shown. The General Building
Contractors of N.Y. State case involved public bidding requirements, also designed to ensure that
corruption and favoritism does not impair the public fisc.
LaBarbera, Society of Plastics, and Lancaster Development, all cited by the City
Defendants, do not justify dismissal on standing grounds. LaBarbera v. Town of Woodstock
involved a Towns decision to forever preserve its own property through the granting of a
conservation easement to a not-for-profit entity (29 AD3d 1054 [3d Dept 2006]). The question
of standing in LaBarbera only related to the petitioners first cause of action, which challenged
the Towns title to property it was seeking to preserve (id. at 105556). The Court held that the
petitioners lacked standing because they admitted they did not hold any current or future interest
in the property, and therefore could not be heard to complain that the Town, which did own the
property, would be giving a conservation easement, as it was statutorily authorized to do. This
case is different: here, the City is not seeking to preserve its own property, and Petitioners are not
challenging the Citys title to the property; the City is seeking to transfer a prime piece of Cityowned land on Broadway to a private, for-profit entity for half of what the property is worth.
LaBarbera concerned how the Town was using (or, more precisely, choosing not to use) its
property; this case involves the City making an illegal gift of taxpayer property.

Society of Plastics v County of Suffolk, addressing standing to assert SEQRA claims, is

not relevant to Petitioners standing to assert claims relating to the City Respondents waste of
public assets (77 NY2d 761 [1991]). As Respondents readily note standing under SEQRA
requires a different standard of review. In fact, in Society of Plastics, the Court distinguished
land use and environmental standing from traditional standing. First, it pointed out that a prior
version of the SEQRA legislation would have included a citizen suit provision, whereas the
final adopted SEQRA legislation did not (id. at 770). Then, it noted that land use standing had
been refined into a more restrictive test than traditional standing. Land use standing requires a
direct interest in the administrative action being challenged, different in kind or degree from
that of the public at large, whereas traditional standing employed the concept of plaintiffs
aggrievement, which is not so restricted (id. at 77475). Finally, the petitioner in Society of
Plastics was alleging harm in the form of added expense if plastics products were banned (as
proposed by the legislation challenged in that case), a pure economic injury that was not within
the zone of interests that SEQRA was intended to protect (id. at 77778). Unlike in Society of
Plastics, Petitioners here, as taxpayers, are asserting claims based on illegal waste of municipal
property, which does aggrieve them as taxpayers and which claims are within the zone of
interests sought to be protected under the statutes under which they assert their claims.
Finally, Lancaster Development v. McDonald is distinguishable (112 AD3d 1260 [3d
Dept 2013]). Lancaster involved a company that chose not to bid on a public works project, but
then commenced a proceeding challenging the bid specifications. The Court found no standing
because the alleged harm arose not from the bid specifications about which the company
complained, but from the choice by the company not to submit a bid. Moreover, the Court
recognized that the competitive bidding statutes were intended to protect the public fisc, not

individual bidders, and therefore, unlike here, the companys alleged injury was not within the
zone of interests sought to be protected by the competitive bidding statute under which the
company was proceeding. The Court also found no common law taxpayer standing in Lancaster,
since a losing bidder could have commenced suit to challenge the bid specification at issue (id.
at 1263). Here, the harm suffered by Petitioners relates to the Citys waste of a prime piece of
property located on Broadway, by selling it for less than half of what it is worth. This type of
harm is clearly within the zone of interests sought to be protected by the provisions of the
Constitution, the City Charter, and the General City Law under which Petitioners assert their
claims. Moreover, since the RFP was successfully designed to exclude all potential bidders other
than the Aronson family, with whom certain City officials acknowledge they first negotiated the
deal before preparing the RFP, there were no losing bidders who could bring a challenge.
Therefore, Petitioners have standing.


Petitioner McTygue Has Standing to Assert the SEQRA Challenges.

Additionally, Respondents claim that Petitioners lack standing to assert challenges to the

transaction based on SEQRA violations.

What Respondents fail to acknowledge is that

Petitioner McTygue owns property located at the corner of McTygue Place and Henry Street.
The McTygue property is located just approximately 250 yards from the Collamer lot, which the
City has readily acknowledged is being sold to facilitate a private developers construction of a
mixed-use, multi-story building thereon.
The City also readily acknowledges that the sale of the Collamer lot will eliminate 42
parking spots on Broadway, and for that reason, the Algonquin Building, LLCs development of
the Collamer lot will await construction of a parking garage proposed by the Saratoga Springs
City Center Authority for property located at the corner of York Street and High Rock Avenue,

which is just 105 yards from the McTygue parcel.

If the sale of the Collamer lot is

consummated, the demand for the proposed parking garage will necessarily increase. The
proposed parking garage consists of a 70 foot tall, 5 floor parking deck that spans from the City
Center Building on Maple Avenue, over Maple Avenue, across City-owned land near High Rock
Park, to High Rock Avenue.
The sale of the Collamer lot parcel, given the proximity of both the Collamer lot and the
proposed City Center Authority parking garage to the McTygue parcel, will impose upon
Petitioner McTygue environmental harm that is greater in degree than it will on the general
public (McGrath v. Town Bd. of North Greenbush, 254 AD2d 614, 616 [3d Dept 1998]
[petitioner had standing to challenge based on SEQRA where she alleged that her property was
located approximately 500 feet from the project site]).
Accordingly, Petitioner McTygue has standing to assert causes of action based upon
violations of SEQRA.

The Claims Challenging the Illegal Waste of City Assets are Timely.
The City Respondents posit that the causes of action seeking to annul the resolutions

authorizing the Citys agreement to the transaction are time-barred because they were not
brought within four months of the December 17, 2013 resolution. That is wrong.
Initially, the City Respondents position that all Article 78 causes of action are universally
governed by a four-month statute of limitations is wrong. To determine the applicable statute of
limitations, [r]egardless of how a pleading is styled, the Court must ascertain the true nature
of the case (Dandomar Company, LLC v. Town of Pleasant Valley Town Board, 86 AD3d 83, 90
[2d Dept 2011]). In Dandomar Company, the Appellate Division applied a one-year statute of

limitations to five Article 78 causes of action where the substance of the claim asserted a
challenge to the abandonment of a highway under Highway Law 205, which carries a one-year
statute of limitations (id. at 91).
Here, the Article 78 causes of action (excluding those alleging SEQRA violations) allege
that the City Respondents engaged in waste by agreeing to sell the Collamer lot for $775,000,
when it has a fair market value in excess of $1,100,000 (in violation of the City Charter, the New
York Constitution, and the public trust doctrine) using a process that violates the City Charter
and the General City Law aimed at securing full value.
These claims, although styled as Article 78 claims, are in substance, claims asserting
waste cognizable under General Municipal Law 51. Regardless of whether these claims are
measured by the one-year statute of limitations (Clowes v. Pulver, 258 AD2d 50, 55 [3d Dept
1999]) or the three-year statute of limitations (Espie v. Murphy, 35 AD3d 348, 348 [2d Dept
2006]), and even if measured from December 17, 2013, the claims are still timely.
But even if the Court applies a four month statute of limitations to the Article 78 claims,
the Article 78 claims are still timely. A challenge to agency action does not ripen, and therefore
the statute of limitations does not begin to run, until two requirements are met: (1) the agency
must have reached a definitive position on the issue that inflicts actual, concrete injury, and (2)
the injury inflicted may not be prevented or significantly ameliorated by further administrative
action or by steps available to the complaining party (Best Payphones, INc. v. Dept of Info.
Tech. and Telecomm. of the City of N.Y., 5 NY3d 30, 34 [2005]). Where an agencys
determination remains subject to further correction by the same agency, the determination is not
ripe for review, and therefore, the statute of limitations has not been triggered (Walton v. N.Y.S.
Dept of Correctional Services, 8 NY3d 186, 196 [2007]). If the harm claimed is contingent
upon events which may not come to pass, the claim . . . is nonjusticiable as wholly speculative
(Adirondack Council, Inc. v. Adirondack Park Agency, 92 AD3d 188, 190 [3d Dept 2012]). A

determination that is merely a preliminary step in the process is not final and therefore not ripe
for review (Sour Mountain Realty v. N.Y.S. Dept of Envtl. Conserv., 260 AD2d 920, 922 [3d
Dept 1999]).
A claim brought any time before August 5, 2014 would not have been ripe, and therefore,
the statute of limitations did not begin to run until August 5, 2014.
The resolution adopted on December 17, 2013, made clear that the resolution started the
process, not completed it, as evidenced by the fact that it states: The City Council accepts the
proposal submitted by the Algonquin Building, LLC SUBJECT TO AND CONDITIONED
UPON the following: The City and the LLC shall enter into a written agreement for the sale of
the aforementioned real property, and said agreement shall be subject to final approval of the
City Council. The City (and therefore its taxpayers) could not be bound to consummate the
transaction by virtue of the December 17, 2013 resolution, since it had not yet signed a written
contract to do so, and in fact, had not yet authorized the Mayor to execute a contract. Taxpayers
could not have suffered harm until the City bound itself to consummate the transaction. At any
point in time through August 5, 2014, the City could have opted not to proceed with the
transactions, such as if the SEQRA reviewwhich had not yet begundemonstrated that the
proposed action would result in adverse environmental impacts that were too significant to
In fact, in this regard, the SEQRA Environmental Assessment Forms relating to the
purchase of the Union Avenue Parcel and the sale of the Collamer lot had not been executed until
July 31, 2014 and August 5, 2014, respectively. One of the very first steps in the SEQRA
process is completion of the EAF, which precedes the determination to issue a negative
declaration (which ends the SEQRA process), or to issue a positive declaration (which continues
the SEQRA process through preparation of an environmental impact statement). The City
Councils negative declarations, which as a matter of law must precede any decision on the

actions, were adopted on August 5, 2014. It was after the adoption of the negative declaration
that the City Council passed a motion to authorize the Mayor to execute the contracts, which
bound the City to consummate the transactions.
At any one of these steps, the City Council could have determined not to proceed with
either transaction. Any cause of action challenging the transaction was therefore not ripe for
judicial review until August 5, 2014. This necessarily means that the statute of limitations could
not have begun to run until August 5, 2014. In fact, on December 17, 2013, Commissioner
Scirocco pointed out that the December 17, 2013 resolution was not binding the parties to the
transaction, but was instead subject to a further resolution of the City Council (Webcast Excerpt
of December 17, 2013 City Council Meeting, at 21:30).
Finally, the architect of the transaction, Commissioner Mathiesen, stated at the December
17, 2013 meeting, that the resolution was the first step in the process (Webcast Excerpt of
December 17, 2013 City Council Meeting, at 25:50). The City Respondents position now that
the December 17, 2013 resolution was the final step giving rise to a right to seek judicial review
is belied by the recorda record much of which the City Respondents have chosen not to
provide to the Court.
Since the statute of limitations did not begin to run until August 5, 2014, this proceeding,
commenced on December 5, 2014, was timely commenced, regardless of whether the applicable
statute of limitations is four months, one year, or three years.

Accordingly, the City

Respondents motion must be denied.

The SEQRA Claims are Timely.
Mayor Yepsen was not authorized to sign a contract binding the City to either the sale of
the Collamer lot or the purchase of the Union Avenue parcel until on or after August 5, 2014.
Therefore, any challenge to the SEQRA review of the transaction was not ripe until the City
Council took that final step of approving the contracts.


Significantly, the basic purpose of SEQRA is to incorporate the consideration of

environmental factors into the existing decisionmaking processes of government at the earliest
possible time (Troy Sand & Gravel Co., Inc. v. Town of Nassau, ___ AD3d ___, 2015 N.Y. Slip
Op. 01511 [3d Dept February 19, 2015]; 6 NYCRR 617.1 [c]). Thus, [n]o agency involved
in an action may undertake, fund or approve the action until it has complied with the provisions
of SEQR (6 NYCRR 617.3 [a]).
One of the very first steps in the process is the completion of an Environmental
Assessment Form, which assists the agency in determining significance.

Here, the

Environmental Assessment Forms for the purchase of the Union Avenue parcel and for the sale
of the Collamer lot were executed on July 31, 2014 and August 5, 2014, respectively. Then,
negative declarations were adopted on August 5, 2014, followed by the City Councils final
determination on August 5, 2014 to authorize the Mayor to sign contracts relating to the
The City Respondents rely heavily on Young v. Board of Trustees of the Village of
Blasdell (89 NY2d 846 [1996]), claiming that in that case the Court held that the petitioner was
too late to challenge a SEQRA negative declaration that was adopted nine months after the action
was taken that required the SEQRA negative declaration. In their papers, Respondents assert the
timeline as follows: [o]n December 13, 1993, the lease was executed and, in September of
1994, the Board issued a negative declaration under SEQRA, suggesting to the Court that the
September 1994 negative declaration related to the lease approval of December 1993. That
suggestion is at best misinformed, or worse, misleading.

In fact, as is made clear in the

Appellate Division decision in that case,

the issuance of the negative declaration by the Village was not
related to the resolution or lease, but was for the construction and
operation of the transfer station. The SEQRA review and
negative declaration issued by the Village were part of the
Department's application process in considering Blasdell's

application for a solid waste management facility permit (Young

v. Bd. of Trustees of Vill. of Blasdell, 221 AD2d 975, 978 [4th
Dept 1995]).
In fact, the Appellate Division pointed out that the challenge to the September 1994
Negative Declaration was not even ripe because there had been no final agency determination
with respect to the construction and operation of the transfer station (id.).
Here, the Negative Declarations did relate to the proposed transactions, and were adopted
the same night, August 5, 2014, that the City Council made its final determination with respect to
the sale of the Collamer lot and the purchase of the Union Avenue parcel. This case was
commenced within four months of that date, and therefore, the Article 78 causes of action
challenging the transactions based upon SEQRA violations are timely. The City Respondents
motion must therefore be denied.
The Public Trust Doctrine Claim is Timely.
As explained in detail above, the City Council did not take final action that would be
subject to review until August 5, 2014, and therefore, under even the four-month statute of
limitations, the claims asserting that the sale of the Collamer lot violates the public trust doctrine
are timely.
In addition, however, despite the City Respondents attempt to re-cast the Fourth Cause
of Action as an Article 78 claim, in fact, it appropriately asserts a declaratory judgment claim,
which carries a six-year statute of limitations:
[C]ontrary to the respondents contention and the Supreme
Courts determination, a declaratory judgment action rather than a
proceeding pursuant to CPLR Article 78 is the proper vehicle for
resolving the petitioners second cause of action, founded upon the
public trust doctrine. The CPLR does not specifically prescribe a
limitations period for declaratory judgment actions. To determine
the limitations period applicable to a particular declaratory
judgment action, the court must examine the substance of the
action to identify the relationship out of which the claim arises and
the relief sought . . .


The petitioners second cause of action seeks to prevent the City

from acting outside the scope of its authority in violation of the
public trust doctrine. . . . [T]he second cause of action is separate
and distinct from the first cause of action challenging the SEQRA
determination and the six-year catch-all limitations period of
CPLR 213(1) is applicable (Jones v. Amicone, 27 AD3d 465,
46970 [2d Dept 2010]).
Here, the Fourth Cause of Action makes clear that Petitioners are seeking to prevent the
City from acting outside the scope of its authority in violation of the public trust doctrine, and the
six year statute of limitations does not expire until, at the earliest, August 5, 2020. Therefore, the
Fourth Cause of Action, interposed on December 5, 2014, is timely by more than 5 years, and
the City Respondents motion must be denied.
The City Respondents also seek dismissal under CPLR 3211 [a] [7]. On a motion to
dismiss pursuant to CPLR 3211 [a] [7], the Court must afford the complaint a liberal
construction, accept as true the allegations contained therein, accord the plaintiff the benefit of
every favorable inference and determine only whether the facts alleged fit within any cognizable
legal theory (e.g., Tomhannock, LLC v. Roustabout Resources, LLC, 115 AD3d 1074, 107576
[3d Dept 2014] [quoting Woodhill Elec. v. Jeffrey Beamish, Inc., 73 AD3d 1421, 1421 [2010]).
Whether the plaintiff will ultimately be successful in establishing those allegations is not part of
the calculus (Landon v. Kroll Laboratory Specialists, Inc., 22 NY3d 1, 56 [2013]). A court
may freely consider affidavits submitted by a plaintiff to remedy any defects in the complaint
and the criterion is whether the proponent of the pleading has a cause of action, not whether he
has stated one (Leon v. Martinez, 84 NY2d 83, 8788 [1994]); Raquet v. Travelers Cas. & Sur.


Co., 2 AD3d 1310, 1310 [4th Dept 2003]). As set forth below, Petitioners have stated causes of
action and the City Respondents premature motion must be denied.

Petitioners Have Stated Causes of Action for Violation of the City Charter, the New
York Constitution, the General City Law, and the Municipal Home Rule Law.
Petitioners have stated causes of action for violations of the City Charter, the New York

Constitution and the General City Law.

The City Charter requires that the City secure fair value for any property it sells. The
Constitution prohibits the City from making a gift of its property. The Petition alleges here that
the City is purporting to sell the Collamer Lot for $775,000 when the value of the Collamer Lot
is in excess of $1,100,000.00. The City Respondents, prior to authorizing the transactions,
were presented with a bona fide, written offer to purchase the Collamer Lot for $1,100,000.
They were also presented with the offerors appraisal, which estimated the value of the Collamer
lot at $1,600,000. Although the City Respondents had generated an appraisal to support their
privately negotiated transaction prices, they were presented with a willing buyer who was
offering $325,000 more than that offered by Mr. Aronson, prior to the City Council authorizing
the Mayor to sign a contract. The fair market value for the property accordingly, was at least
$1.1 million (see Keator v. State, 23 NY2d 337, 339 [1968] [fair market value is the price for
which the property would sell if there was a willing buyer who was under no compulsion to buy
and a willing seller under no compulsion to sell]; see also Rusciano & Son Corp. v. Roche, 70
AD2d 953, 955 [2d Dept 1979]).
In the face of a willing buyer that was offering to pay $325,000 more than the Algonquin
Building, LLC, the transaction at issue cannot be construed as generating fair value for the
City, nor can it be construed as anything but a gift of significant value (under the circumstances,
a gift of at least $325,000 in value) from the City to the Algonquin Building, LLC.


In fact, prior to executing the contract to sell the Collamer Lot, the Mayor recognized the
Citys obligation to make sure it was securing the best value for the Collamer Lot, but she was
ignored by the rest of the City Council. The Mayors discussion begins at 9 minutes, 30 seconds
in the Webcast Excerpt of the August 19, 2014 City Council meeting, and is reproduced below:
#11 is the last item on my agenda is to propose an additional step
to ensure that we as a council, are getting the best value for the
Collamer Lot.
Since we voted for the sale of the Collamer Lot, brought to us
simultaneously with the purchase of the Union Avenue land
contract two weeks ago, new information has been put in front of
us. We now have two vastly different appraisals on the table, one
for $775,000 and one for $1.6 million. We also have a signed
contract to purchase the lot for $1.1 million in front of us,
$325,000 more than our current offer. After much research on this
matter, our City Attorney has concurred this offer does appear to be
a bona fide offer.
This lot is City property and we have a financial and legal
responsibility to all of our city citizens to ensure we are selling the
property that the city owns for fair market value. How can we
ignore this new information and justify it to our tax paying
citizens? We, as elected officials, are required by law, not just if we
want to, we are required by law to secure fair market value for
taxpayer-owned property.
The contract to sell the Collamer lot is a separate legal document
from the one to purchase the land on Union Avenue. I have the
signed the contract to purchase the land on Union Avenue as
agreed for the new EMS station. We should schedule that closing
on that property and begin planning immediately for the EMS
station. We have all agreed at this table that the safety of our
citizens living in the Eastern part of the City must be a priority.
Regarding the Collamer lot; Ive been advised on specific legal
steps we can take immediately to reduce our future legal exposure.
Lawsuits are not only costly, but can substantially delay projects.
Our attorneys have advised us to procure a third appraisal. Not
only is it prudent to listen to the experts, but I cannot come up with

one good reason not to. We need to make this deal as bullet-proof
as possible and procure one more appraisal will be quick and easy.
Therefore, in the spirit of the publics trust, I propose this
additional appraisal be done as soon as possible. It certainly seems
logical to me as the next step so that we can in good conscience
answer the public why we are not considering the higher offer. We
should enlist a third appraisal to determine the fair market value of
the lot today. So I am making a motion this evening to authorize
the Council to obtain an appraisal of 500 Broadway, commonly
known as the Collamer lot, to ensure we are securing fair market
value on behalf of the City for this taxpayer-owned property. And
thats a motion, is there a second?
[No responses]
No second. Okay, I think this is still a very prudent thing to do and
we are required by law to do it, in lieu of the Councils noncompliance or even a second to my motion for discussion, I regret
to say I must submit to the will of the Council and execute the
councils wishes and I will sign the contracts now. That concludes
my agenda.
Respondents also attack the appraisal that estimated the Collamer lots value at $1.6
million, but that attack ignores the written offer made by Mr. Zappone to buy the lot for $1.1
million. Moreover, Respondents criticism to the Bellcourt appraisal, and reliance upon their
own appraisal, merely raise a question of fact, which may not be appropriately considered on
this motion (Grand Realty Co. v. City of White Plains, 125 AD2d 639, 640 [2d Dept 1986]).
Moreover, Petitioners have stated causes of action alleging a violation of the City Charter
and the General City Law relating to the method of procuring the sale of the Collamer Lot. The
General City Law requires that real property be sold at public auction to the highest bidder after
three weeks of published notice (N.Y. General City Law 23 [b] [2]). The City Respondents
claim that the City Charter supersedes that provision and allows the City to sell real property in a
private sale. However, to supersede state law, a municipality invoking its supersession authority
[must] state its intention with definiteness and explicitness (see Kamhi v. Town of Yorktown, 74

NY2d 423, 43435 [1989]). In their motion, Respondents summarily claim that the City Charter
supersedes General City Law 23(b)(2), but they provide no evidence that in enacting the City
Charter, the City stated its intention with definiteness and explicitness, and with specific
reference to that portion of the General City Law that it was allegedly superseding (N.Y. Mun.
Home Rule Law 22; Turnpike Woods, Inc. v. Town of Stony Point, 70 NY2d 735, 738 [1987]).
Therefore the Citys motion to dismiss must be denied, as Petitioners have stated causes
of action asserting violations of the New York Constitution, the General City Law, the City
Charter, and the Municipal Home Rule Law.

Petitioners Have Stated a Cause of Action Under the Public Trust Doctrine.
Respondents have made a CPLR 3211 motion, not a CPLR 3212 motion, and therefore,

their reliance upon Matter of 10 East Realty, LLC v. Inc. Vill. of Valley Stream (49 AD3d 764
[2d Dept 2008]) (hereinafter, 10 East Realty II) is misplaced.
In 10 East Realty II, the Court did not find that the petitioners had failed to state a cause
of action, but instead that they failed to prove their case:
Municipal parking may constitute a public use of property and
the petitioners may have been able to establish that the Village was
not entirely free to sell or lease the subject parking lot had they
shown that the property was dedicated for public use through
express provisions in a deed or legislative enactment. The
petitioners, however, submitted no evidence demonstrating that
such dedication had occurred, and thus failed to carry their burden
of proof on this issue.
What Respondents again do not reveal is that in the very same dispute, on an earlier
CPLR 3211 motion, the very same court rejected the argument now made by Respondents that
the public trust doctrine never applies to municipal parking lots:
The petition alleges that the parking lot is held by the Village for
public use, that the Village did not seek the State Legislatures
approval of the lease, and that Lincoln Realty, a private
corporation, was leasing the parking lot for its private use. Thus,
considering the petition alone, deeming all of its allegations to be
true, and according the petitioners the benefit of every inference,
the allegations asserted in the petition demonstrate the existence

of a bona fide justiciable controversy which should be addressed.

Accordingly, the respondents pre-answer motion to dismiss the
petition for failure to state a cause of action should have been
denied . . . (Matter of 10 East Realty, LLC v. Incorporated Vill. of
Valley Stream, 17 AD3d 474, 476 [2d Dept 2005]) (hereinafter,
10 East Realty I).
Here, the petition alleges that the Collamer Lot was and is a city parking lot held by the
City for public use, the Collamer parking lot is specifically identified and referenced in the
City of Saratoga Springs City Code in Chapter 225 as a municipal parking lot, the Collamer
parking lot has been dedicated to public use as a free public parking lot, the Collamer Lot has
been dedicated to public use as a free public parking lot, and the Collamer Lot has been
dedicated to the public trust. The petition also alleges that the State Legislature has not
authorized the City to alienate or sell the Collamer Lot to a private party for a private possession
or use. As in 10 East Realty I, the City Respondents motion to dismiss for failure to state a
cause of action must be denied.
The other cases cited by Respondents are not on point. Niagara Preserv. Coalition, Inc. v.
N.Y. Power Authority is not relevant (121 AD3d 1507 [4th Dept 2014]). There, the Court held
that the public doctrine only applied to municipal property, not state-owned property (id. at
1511). There, the dispute centered on a State park, and therefore, the public trust doctrine did not
apply. No one is asserting at the Collamer lot is state-owned land.
Friends of Van Cortland Park v. City of New York, cited by Respondents, does not defeat
Petitioners claims either (95 NY2d 623 [2001]). There, the Court of Appeals merely confirmed
that the public trust doctrine applied to parks, not that the doctrine did not apply to other
municipal property dedicated to public use (id. at 63031).
In Powell v. City of New York, the Court found the public trust doctrine inapplicable
because there had been no showing that the property had been dedicated to public use (85 AD3d
429, 431 [1st Dept 2011]). To the contrary, the Court found that the conveyance of the property


to the City in that case expressly prohibited designation of the subject property as mapped
parkland, and its use was restricted 70% of the time to those who pay membership fees. Again,
the Powell case does not stand for the proposition that the public trust doctrine never applies to
municipal parking lots; rather, it stands for the proposition that the public trust doctrine applies
only where municipal property has been dedicated to public use.
Thus, the Court must deny the City Respondents motion to dismiss, because the
allegations of the Petition adequately allege a public trust doctrine claim.
Petitioners Have Stated A Claim for Improper Segmentation under SEQRA.
The City Respondents contention that there is no segmentation claim is belied by the
record (see 6 NYCRR 617.2 [ag], 617.3 [g], 617.7 [c] [2]). Factually, the entire purpose of
the sale of the Collamer lot and purchase of the Union Avenue parcel was to facilitate the
construction of a fire/emergency service facility on the Union Avenue parcel and for the
Algonquin Building, LLC to build a mixed use development on the Collamer lot. While clearly
these purposes existed during the private negotiations between City officials and Mr. Aronson,
the RFP also makes it clear:
[T]he City is seeking the acquisition of land suitable in size,
location and development for the construction of a Fire/Emergency
Service facility that will service the citizens on the eastern ridge of
Saratoga Springs, as well as, the rest of the City. . . .
The City of Saratoga Springs is desirous of maximizing utilization
of this important Broadway parcel [the Collamer lot] with the
development of a new multi-story mixed use commercial building.
The City of Saratoga Springs holds title to the entire Collamer lot
parcel. However, the City is willing to offer this site to an
identified purchaser exemplifying the best development plan
meeting the criteria of this RFP . . . .
Also, any responders to the RFP were required to submit with their proposal,
[d]escription of proposed use of the Collamer Parking Lot.

Additionally, lest there be any misunderstanding, the single response to the RFP included
the following:
The respondent owns the Algonquin Building which is adjacent to
the Collamer Lot. We are currently working with Bonacio
Construction Inc. to complete a thorough historic renovation of this
property. Our goal in acquiring the Collamer lot is to allow us to
develop a mixed use project that, in keeping with the goals of the
T-6 Zone, will tie into the massing and aesthetic qualifies, as well
as the retail energy established by the Algonquin Building to the
north and the Collamer building to the South. Upon acceptance of
our proposal we would quickly begin work, in cooperation with the
Citys Land Use Boards, to develop conceptual plans and
renderings of our project.
Even the December 17, 2013 resolution accepting the proposal (subject to further action
by the City Council) clearly recognized that the transactions were not simply separate land
transactions, but instead were part of a project plan to develop both the Collamer Lot and the
Union Avenue Parcel:
That request [the RFP] specified that the City was seeking
proposals from individuals and entities interested in purchasing the
City-owned parcel at 500 Broadway . . . and developing on that lot
a new multi-story mixed use commercial building. The request
further specified that that prospective purchasers must also offer
land to the City suitable in size, location, and development for the
construction of the aforementioned Fire/Emergency Services
facility . . .
The LLC [prospective purchaser of the Collamer lot] shall make all
required applications to and obtain all required approvals from the
Saratoga Springs Planning Board, Zoning Board of Appeals,
Design Review Commisision, and all other local, state and federal
government agencies, boards, bodies, commissions and entities, to
develop a multi-story mixed use commercial building . . . .
The LLC shall have eighteen (18) months from the date of the
written agreement of sale between the LLC and the City to
complete all requirements for applications for all required
approvals from all governmental authorities, and to file said
applications appropriately. . . .


In addition to and not in limitation of any and all provisions in this

resolution, the City shall have the right to proceed with the
development of [the Union Avenue parcel] as a Fire/Emergency
Services facility immediately upon closing the sale of that parcel.
The development of the Union Avenue Parcel into a Fire/EMS service facility and the
construction of a mixed-use development on the Collamer lot are, and always have been, integral
components of the transactions. From the very beginning, the sale of the Collamer lot was
conditioned upon the purchaser developing a multi-story mixed use commercial building
thereon, and the Citys purpose in acquiring the Union Avenue parcel was specifically to
construct a Fire/EMS service facility. The purchase of the Union Avenue parcel and the sale of
the Collamer lot are part of the larger planfar from being speculativeto construct the
Fire/EMS service facility and the mixed use building on Broadway. The City Respondents
suggestion that the construction of either development is not likely to be undertaken as a result
or dependent upon the real property transactions is irrational, at best.
Center of Deposit, Inc. v. Village of Deposit, cited by Respondents is not on point (90
AD3d 1450 [3d Dept 2011]). There, there was absolutely no record evidence that petitioner
or, indeed, any prospective purchaserhad any solidified plans to develop either parcel (id. at
1453). Clearly, there is record evidence here that both parties have plans to develop the parcels
at issue.
Accordingly, Petitioners have stated a claim for improper segmentation, in violation of
Petitioners Have Stated a Claim Under N.Y. General Municipal Law 51.
Finally, the City Respondents ask the Court to dismiss the General Municipal Law 51
claim. First, the Petition very clearly alleges facts sufficient for the Court to infer that the
transaction was effectuated through corrupt and illegal conduct, particularly in light of

With respect to their motion for failure to state a cause of action, the City Respondents limit their motion to
Petitioners illegal segmentation claim. They have not moved on this basis to dismiss the Fifth Cause of Action,
which alleges that the August 5, 2014 resolutions must be annulled based upon violation of lawful procedure.


admissions made in the Respondents motion papers and the additional submission made by
Petitioners on this motion (see Gessin v. Throne-Holst, 43 Misc3d 517, 533534 [Sup. Ct.,
Suffolk Co. 2014]).
With knowledge that the Union Avenue parcel was owned by a religious corporation in
which Mr. Aronson is an officer, and with information that the Collamer Lot may be worth twice
as much as the price that Mr. Aronsons private, for-profit development entity was offering, the
City Respondents (except the Mayor) relentlessly pursued the coupled transaction of both (1)
buying the Union Avenue parcel (from Mr. Aronsons not-for-profit, for as much as $500,000
less than what Aronson was seeking) and (2) selling the Collamer Lot (for between $325,000 and
$825,000 less than what is worth, to Mr. Aronsons for-profit development entity) without
seeking an additional appraisal, and without even considering an independent offer made to
purchase the Collamer lot for $1.1 million. This entire transaction, inclusive of, but not limited
to, the deceptive and fraudulent RFP (which the City Respondents acknowledge was issued
simply to appease the public), smacks of public and not-for-profit corruption and illegal conduct.
The facts, as alleged, could support a finding that the City Respondents minimally lined the
pocket of a not-for-profit officer with a valuable developable parcel of real property located in
the heart of downtown Saratoga for less than what the property was worth, in exchange for a
reduced price on the not-for profits Union Avenue parcel, all at the expense of the Citys
Moreover, the Court should be aware that, although the City Respondents are remarkably
silent on the issue, the New York State Attorney Generals Office Public Integrity Bureau, which
is a bureau of the Criminal Justice division, is investigating the transactions. The Attorney
Generals review is not limited to a review by the Charities Bureau to confirm that the religious
corporation is getting fair value, but has expanded into investigating whether there was public


official misconduct. The Public Integrity Bureau is described on the Attorney Generals website
as follows:
When government actors, or private individuals acting in concert
with them, engage in corruption, fraud or illegal behavior in the
course of their public duties, the PIB may investigate or take
enforcement action to restore the public's interest in honest
government and the integrity of government officials at the state
and local level. Specifically, PIB handles complex investigations
into government corruption, fraud and abuse of authority. Although
PIB is part of the Criminal Division, PIB brings cases pursuant to
both civil and criminal authority. The Bureau can also issue reports
( [last visited
March 6, 2015]).
In fact, submitted with Petitioners motion papers is an affidavit of Scott Bellcourt, who
performed the appraisal estimating the value of the Collamer lot at $1.6 million, which the City
ignored and attacks so vigorously on a CPLR 3211 motion. The same day that Mr. Bellcourt
signed the affidavit, he was served with an Attorney General subpoena seeking documents and an
interview relating to the Collamer lot transaction.
For the City Respondents to suggest that there can be no taxpayer action based on the
facts as alleged and as admitted in their motion papers, is perplexing. The City Respondents
have clearly known about the Attorney Generals investigation into their conduct.


investigation has been reported widely in the press, and those reports indicate that some of the
City Respondents themselves have been served with subpoenas and directed to appear for
Dismissal of the taxpayer action at this stage would be inappropriate; the investigation of
the Attorney Generals office into this transaction, which according to the authority of the Public
Integrity Bureau as set forth on its website, could result in possible criminal consequences, is
clearly sufficient for the Court to infer, on a motion to dismiss for failure to state a cause of
action, possible illegal and corrupt conduct supporting Petitioners taxpayer suit claim. In public


corruption and taxpayer waste claims, the underlying facts are rarely (if ever) displayed in full
public view on the face of the public record. The public has a right to know the truth as to what
led to these City officials gifting at least $325,000 in excess real property value to a private LLC,
at the expense of the taxpayers and a not-for-profit entity.
Based on the foregoing, the City Respondents motion to dismiss must be denied in its

Dated: March 6, 2015

Albany, New York

Daniel J. Tuczinski, Esq.
Attorneys for Petitioners
54 State Street, Suite 803
Albany, New York 12207
(518) 463-3990