You are on page 1of 12

FILED: JEFFERSON COUNTY CLERK 12/06/2018 08:51 AM INDEX NO.

EF2018-00002756
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/06/2018

STATE OF NEW YORK


SUPREME COURT COUNTY OF JEFFERSON
he Matter of the Application for a Judgment
Pursuant to Article 78 of the Civil Practice Law

and Rules of: VERIFIED PETITION

TOWN OF HENDERSON TOWN BOARD, and Index No.:

CLAUDIA MAURER in her capacity as Trustee of the


FLORENCE A. M. MAURER IRREVOCABLE TRUST Hon.
and the MONTAGUE FAMILY TRUST

Petitioners
v.

TOWN OF HOUNSFIELD TOWN BOARD

Respondent

PETITIONERS TOWN OF HENDERSON TOWN BOARD and CLAUDIA MAURER


in her capacity as Trustee of the FLORENCE A.M. MAURER IRREVOCABLE TRUST
and the MONTAGUE FAMILY TRUST, by and through their attorney Douglas H.

Zamelis, Esq., allege for their verified petition as follows:

INTRODUCTION

1. This proceeding is brought by the Town of Henderson Town Board and Claudia

Maurer in her capacity as Trustee of the Florence A. M. Maurer Irrevocable Trust

and the Montague Family Trust pursuant to Article 78 of the Civil Practice Law

and Rules to annul and invalidate ab initio Town of Hounsfield Local Law #2 of

2018 ("Local Law #2") purporting to amend the Town of Hounsfield Zoning Law

facilities"
to include "wind power generating in the definition of "essential

services"
a) for the failure of the Town of Hounsfield Town Board ("Hounsfield

Town Board") to comply with the State Environmental Quality Review Act

1 of 12
FILED: JEFFERSON COUNTY CLERK 12/06/2018 08:51 AM INDEX NO. EF2018-00002756
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/06/2018

("SEQRA") codified at Environmental Conservation Law Article 8 with

implementing regulations at 6 NYCRR Part 617; b) for the Hounsfield Town

Board's failure to comply with General Municipal Law Section 239-m; c) because

Local Law #2 is not consistent with the 2014 Town of Hounsfield Comprehensive

Plan as required by Town Law Section 263; and d) because the Hounsfield Town

Board failed to provide at least 10 days prior written notice to the Town of

Henderson Town Clerk concerning the public hearing to be held on Local Law #2

as mandated by Town Law Section 264(2)(b).

PETITIONERS

2. Petitioner Town of Henderson Town Board ("Henderson Town Board") is the

duly elected governing body of a municipal subdivision in Jefferson County with

a principal place of business at 12105 Town Barn Road, Henderson, New York

13560.

3. The Town of Henderson shares a municipal boundary with the Town of

Hounsfield, Local Law #2 applies to land in the Town of Hounsfield which

borders the Town of Henderson, and wind power generating facilities in the Town

of Hounsfield could result numerous environmental impacts in the Town of

Henderson, including but not limited to in visual, noise, lighting and avian

impacts, and could affect the community character as well as patterns of growth

and development in the Town of Henderson. Additionally, the Town of

Henderson Town Clerk was entitled by Town Law Section 264(2)(b) to receive at

least 10 days prior written notice of the public hearing on Local Law #2 but

2 of 12
FILED: JEFFERSON COUNTY CLERK 12/06/2018 08:51 AM INDEX NO. EF2018-00002756
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/06/2018

received no such notice. The Town of Henderson is therefore impacted by the

adoption of Local Law #2 in a manner different in kind and degree than the public

at large, and therefore possesses the requisite standing to commence and

prosecute this proceeding.

4. Petitioner Claudia Maurer resides at 8539 County Route 178, Henderson, New

York 13650, and she is Trustee of the Florence A.M. Maurer Irrevocable Trust

and Montague Family Trust (the "Trusts").

5. The Trusts are the record owners in fee of Stony Island, identified as Town of

Hounsfield tax parcel identification numbers 96.00-1-3 and 96.00-1-4.

6. Claudia Maurer, Trustee, is identified in the records of the Jefferson County Clerk

as an owner of Town of Hounsfield tax parcel identification numbers 96.00-1-3

and 96.00-1-4, and she spends considerable time on and around Stony Island

where she appreciates the unobstructed view of Lake Ontario, the dark night sky,

the peace and quiet of Stony Island and the abundant birdlife in the Town of

Hounsfield including but not limited to eagles, gulls and terns. Claudia Maurer,

Trustee, and the Trusts are therefore impacted by the adoption of Local Law #2 in

a manner different in kind and degree than the public at large, and therefore

possess the requisite standing to commence and prosecute this proceeding.

RESPONDENT

7. Respondent Town of Hounsfield Town Board is the duly elected governing body

of the Town of Hounsfield with a principal place of business at 18774 County

Route 66, Salt Point Road, Watertown, New York 13601.

3 of 12
FILED: JEFFERSON COUNTY CLERK 12/06/2018 08:51 AM INDEX NO. EF2018-00002756
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/06/2018

BACKGROUND

8. The minutes of the Hounsfield Town Board's October 10, 2018 meeting indicate

"Supervisor Scee introduced Local Law #2 of 2018, to amend the Zoning Law to

add the definition of Essential Services. A Public Hearing is scheduled to for

7:05pm"
November 7, 2018 at (see October 10, 2018 Hounsfield Town Board

minutes at: htto://www.townofhounsfield-

ny.org/meeting%20minutes/TB%20Mte.%2010.10.18.odf).

9. The minutes of the Hounsfield Town Board's November 7, 2018 meeting indicate:

Supervisor Scee then opened a second public hearing to hear comments on

Local Law #2 of 2018, an amendment to the Zoning Law amending the

definition for essential services. There were no comments from the public

and the hearing was closed. Attorney Renzi read a short SEQR form and

the Board agreed with the content. (see November 7, 2018 Hounsfield

Town Board minutes at: http://www.townofhounsfield-

ny.org/meeting%20minutes/TB%20Mte.%2011.7.18.pdf).

10. The minutes of the Hounsfield Town Board's November 7, 2018 meeting further

indicate:

A motion was made by C'man LaDuc and 2nd by C'woman Pritty-Pitcher

for Resolution #18-21, to adopt Local Law #2 of 2018, amending the

definition of Essential Services in the Zoning Law. All voted aye and the

motion was carried.

11. Upon information and belief, no other reference to Local Law #2 appears

anywhere in the minutes of the Hounsfield Town Board's meetings.

12. The Hounsfield Town Board was required but, upon information and belief, failed

to provide at least 10 days prior written notice of the public hearing on proposed

Local Law #2 to the Town of Henderson Town Clerk as required by Town Law
4

4 of 12
FILED: JEFFERSON COUNTY CLERK 12/06/2018 08:51 AM INDEX NO. EF2018-00002756
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/06/2018

Section 264(2)(b).

13. Modern land-based wind power generating facilities have a blade tip height of

approximately 600 feet or more, rotate with a blade tip speed of almost 200 mph,

can be seen and heard for miles away, require flashing strobe lights at night to

prevent airplanes from colliding with them, and can cause substantial avian and

bat mortality, and upon information and belief, prior to adopting Local Law #2

the Hounsfield Town Board failed to characterize the adoption of Local Law #2

as a SEQRA Type I action presumed to have a significant adverse impact on the

environment according to 6 NYCRR Section 617.4(a)(1); failed to prepare a Full

Environmental Assessment Form required for all Type I actions; failed to

properly identify the relevant areas of environmental concern in connection with

look"
the adoption of Local Law #2; failed to take a "hard at the potential

environmental consequences that could result from the adoption of Local Law #2;

failed to provide a written, reasoned elaboration as to the basis of its

determination of environmental significance of the adoption of Local Law #2; and

failed to publish notice of a Negative Declaration for a Type I action in the

statewide Environmental Notice Bulletin, all as required by SEQRA.

14. Wind power generating facilities almost 600 feet tall visible from miles around

can have substantial inter-municipal impacts, and electrical transmission facilities

associated with industrial wind power generating facilities can have county-wide

implications, and upon information and belief, prior to adopting Local Law #2 the

Hounsfield Town Board failed to refer proposed Local Law #2 to the Jefferson

5 of 12
FILED: JEFFERSON COUNTY CLERK 12/06/2018 08:51 AM INDEX NO. EF2018-00002756
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/06/2018

County Planning Board for a review of inter-community and county-wide

considerations as required by General Municipal Law Section 239-m.

15. Upon information and belief and according to the 2014 Town of Hounsfield

Comprehensive Plan published on the Town of Hounsfield's website at

http://www.townofhounsfield-ny.org/pdf/Hounsfield-lo-res-2014.pdf, Local Law

#2 is not consistent with the Town of Hounsfield's officially adopted

comprehensive plan.

16. Local Law #2 was filed with the New York State Department of State on

November 14, 2018.

AS AND FOR A FIRST CAUSE OF ACTION


(Failure to comply with SEQRA)

17. Petitioners repeat and reallege each and every allegation set forth in paragraphs 1

through 16 hereinabove.

18. "action"
The adoption of Local Law #2 constituted an as that term is defined at 6

NYCRR Section 617.2(b).

19. The adoption of Local Law #2 constituted a "Type I action", as that term is

defmed at 6 NYCRR Section 617.2(aj), pursuant to 6 NYCRR Section

617.4(b)(2).

20. The Hounsfield Town Board is an "agency" as that term is defined at 6 NYCRR

Section 617.2(c).

21. The Hounsfield Town Board was required but failed to characterize the adoption
of Local Law #2 as a Type 1 action to 6
according NYCRR Section
6 617.4(b)(2)

6 of 12
FILED: JEFFERSON COUNTY CLERK 12/06/2018 08:51 AM INDEX NO. EF2018-00002756
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/06/2018

because it changes the allowable uses within zoning districts affecting more than

25 acres, and by failing to properly characterize the action as Type I, the

Hounsfield Town Board failed to recognize that the adoption of Local Law #2

was presumed to have a significant adverse impact on the environment and would

likely require a SEQRA positive declaration and Draft Environmental Impact

Statement.

22. The Hounsfield Town Board received a proposed draft of Local Law #2 and a

completed Part 1 of a Short Environmental Assessment Form, but the Hounsfield

Town Board was required and failed to prepare a Full Environmental Assessment

Form (see both Environmental Assessment Forms at

https://www.dec.ny.gov/permits/6191.html) pursuant to 6 NYCRR Section

617.6(a)(2) because the adoption of Local Law #2 is a SEQRA Type I action.

23. The Hounsfield Town Board was required but failed to prepare parts 2 or 3 of the

Full Environmental Assessment Form as required by the form's instructions.

24. The Hounsfield Town Board was required but failed to identify the relevant areas

of environmental concern associated with allowing wind power generating

facilities including but not limited to visual, noise, lighting, and avian impacts,

and impacts on community character and patterns of growth and development;

look"
take a "hard at each and every such environmental concern; and provide a

written reasoned elaboration as to the basis of its determination of environmental

Test"
significance as required by the "H.O.M.E.S established by H.O.M.E.S. v.

7 of 12
FILED: JEFFERSON COUNTY CLERK 12/06/2018 08:51 AM INDEX NO. EF2018-00002756
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/06/2018

(4th
New York State Urban Dev. Corp., 69 A.D.2d 222 Dept. 1979), and as

subsequently codified at 6 NYCRR Section 617.7(b).

25. Upon information and belief, the Hounsfield Town Board was required but failed

to publish notice of any Negative Declaration for adoption of Local Law #2, a

Type I action, in the Statewide Environmental Notice Bulletin as required by 6

NYCRR Section 617.12(c)(1).

26. The Hounsfield Town Board's failure to comply with SEQRA's procedural or

substantive requirements constituted a failure to perform a duty enjoined on it by

law, was in excess of jurisdiction, was made in violation of lawful procedure, was

affected by an error of law, was arbitrary and capricious, was an abuse of

discretion, and resulted in an environmental impact review that was not

sufficiently protective of the environment.

AS AND FOR A SECOND CAUSE OF ACTION


(Failure to Comply with GML Section 239-m)

27. Petitioners repeat and reallege each and every allegation set forth in paragraphs 1

through 26 hereinabove.

28. Local Law #2 applies throughout the Town of Hounsfield and therefore affects

real property within 500 feet of the boundary between the Towns of Hounsfield

and Henderson, and the Hounsfield Town Board was required but failed to refer

Local Law #2 to the Jefferson Board for a review of inter-


County Planning

community and county wide considerations pursuant to General Municipal Law

Section 239-m.
8

8 of 12
FILED: JEFFERSON COUNTY CLERK 12/06/2018 08:51 AM INDEX NO. EF2018-00002756
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/06/2018

29. The Hounsfield Town Board's failure to comply with General Municipal Law

Section 239-m constituted a failure to perform a duty enjoined on it by law, was

in excess of jurisdiction, was made in violation of lawful procedure, was affected

by an error of law, was arbitrary and capricious, and/or was an abuse of

discretion.

AS AND FOR A THIRD CAUSE OF ACTION

(Inconsistency with Comprehensive Plan)

30. Petitioners repeat and reallege each and every allegation set forth in paragraphs 1

through 29 hereinabove.

31. Town Law Section 263 requires that zoning regulations and amendments be

enacted in accordance with a comprehensive plan

32. The Hounsfield Town Board previously adopted the 2014 Town of Hounsfield

Comprehensive Plan which does not encourage the development of industrial

wind power generating facilities in the Town of Hounsfield, and does not

contemplate the inclusion of wind power generating facilities as "essential

services".

33. The adoption of Local Law #2 which is not consistent with the 2014 Town of

Hounsfield Comprehensive Plan constituted a failure to perform a duty enjoined

on it by law, was in excess of jurisdiction, was made in violation of lawful

procedure, was affected by an error of law, was arbitrary and capricious, and/or

was an abuse of discretion.

9 of 12
FILED: JEFFERSON COUNTY CLERK 12/06/2018 08:51 AM INDEX NO. EF2018-00002756
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/06/2018

AS AND FOR A FOURTH CAUSE OF ACTION


(Failure to Provide Notice to Town of Henderson Town Clerk)

34. Petitioners repeat and reallege each and every allegation set forth in paragraphs 1

through 33 hereinabove.

35. Local Law #2 purported to amend the Town of Hounsfield Zoning Law.

36. Town Law Section 264(2)(b) requires that written notice of a proposed zoning

amendment be provided to the clerk of a neighboring town at least 10 days prior

to the public hearing on the proposed zoning amendment.

37. Upon information, the Hounsfield Town Board did not provide any notice to the

Town of Henderson Town Clerk concerning the public hearing on proposed Local

Law #2.

38. The Hounsfield Town Board's failure to provide notice of the public hearing on

proposed Local Law #2 to the Town of Henderson Town Clerk as required by

Town Law Section 264(2)(b) constituted a failure to perform a duty enjoined on it

by law, was in excess of jurisdiction, was made in violation of lawful procedure,

was affected by an error of law, was arbitrary and capricious, and/or was an abuse

of discretion

WHEREFORE, Petitioners respectfully request that this Court issue a judgment granting

this verified petition, and awarding judgment to Petitioners and against respondent Town

of Hounsfield Town Board as follows:

1. Annulling and invalidating Town of Hounsfield Local Law #2 ab initio;

2. Granting such other and further relief as the Court may deem just, equitable and

10

10 of 12
FILED: JEFFERSON COUNTY CLERK 12/06/2018 08:51 AM INDEX NO. EF2018-00002756
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/06/2018

proper, including but not limited to the costs and disbursements of this proceeding.

Dated: Springfield Center, New York


December 5, 2018

By:

Douglas H. Zamelis‰h.

Attorney for Petitioners

7629A State Highway 80

Cooperstown, New York 13326


Tel.: (315) 858-6002
Fax: (315) 858-7111

11

11 of 12
FILED: JEFFERSON COUNTY CLERK 12/06/2018 08:51 AM INDEX NO. EF2018-00002756
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/06/2018

ATTORNEY 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 petitioner is that the petitioner does not reside 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 petitioner.

UGLAS. H. ZAMELILESQ.

Sworn to before me this


5th day of December, 2018

Notary Public

SHARON L
EDMUNDS
Notary Public, State of New
York
Registration No.
01ED6007097
Qualified in Herkimer
County 12
Commission Expires
May 18, 20d

12 of 12