SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF JEFFERSON _____________________________________________ WIND POWER ETHICS GROUP Petitioner-Plaintiff

, - against PLANNING BOARD OF THE TOWN OF CAPE VINCENT, Respondents-Defendants ________________________________________________ 1. Gary A. Abraham, an attorney admitted to practice in the State of New York, makes this affirmation on behalf of Petitioner-Plaintiff Wind Power Ethics Group. 2. This affirmation addresses the Reply Affidavit of Todd M. Mathes submitted in this matter, and dated January 11, 2011 (hereafter, “Mathes Aff.”), and specifically (1) the account provided there of my efforts to settle a dispute with Mr. Mathes over the use of supplemental materials submitted with my previous affirmation in this matter, dated December 23, 2010; (2) whether supplemental record materials provided with my previous affirmation are properly before this Court; and (3) whether WPEG has standing. 3. Inasmuch as Mr. Mathes has brought the equivalent of an ex parte motion to strike petitioner's papers, (cf. Mathes Aff. ¶ 43), and dismiss the case for want of standing, (id. ¶ 96; cf. ¶¶ 44-59), Petitioner is entitled to respond. CPLR § 2011; Fosmire v. Nicoleau, 144 A.D.2d 8, 12, 536, N.Y.S.2d 492, 494 (2nd Dept. SUPPLEMENTAL ATTORNEY AFFIRMATION Index No. 10-2882

1989), aff'd 551 N.E.2d 77, 75 N.Y.2d 218 (1990). 4. Accordingly, the following discussion shows why the supplemental materials submitted with my previous affirmation are not privileged or otherwise protected from disclosure, and why WPEG has standing. Dispute over supplemental records 5. Attached to Mr. Mathes' Reply Affirmation as Exhibits A, B, C and F is the correspondence between Mr. Mathes and myself from the beginning of our dispute over supplemental records submitted with my reply brief in this case. (WPEG did not submit an initial brief.) The correspondence establishes the following points. 6. I never conceded that any of the supplemental materials attached to my December 23 affirmation were protected, privileged or confidential, (see Mathes Aff. ¶ 19), since they were inextricably related to consultants' reports relevant to the SEQRA review of the SLW project, and they were provided by the town, but to avoid unecessary motion practice I agreed to remove first two, then four strictly attorney communications in an amended submission, in order to allay Mr. Mathes' concerns. Mathes Aff., Ex. F at 1. However, this offer was rejected. Cf. Mathes Aff, ¶ 31; id., Ex. F at 2. 7. As a precaution, pending resolution of the dispute, I directed my client to contact a third party website where the disputed materials were posted and urge that they be taken down. The materials were removed from the internet on January 4, 2011, one day after the dispute arose. See Mathes Aff., Ex. F at 1.

8. The materials at issue are relevant to WPEG's SEQRA claims and are hardly “belied by the Certified Record in this proceeding.” Mathes Aff. ¶ 5. To the contrary, the materials are very consistent with the Certified Record and usefully augment that record.1 9. Indeed, the materials at issue, to the extent they were “obtained and considered in preparing the [EIS],” should have been listed within the EIS and made available to the public. 6 N.Y.C.R.R. § 617.9(b)(5)(viii).

Attorney communications 10. There is no authority for a rigid application of the privilege afforded to attorney communications under CPLR § 4503(a)(1), as urged by the Planning Board. Mr. Mathes urges the Court to find that the Town Supervisor's disclosure of attorney communications violates CPLR § 4503(a)(1), and thus disclosure of the communications can be denied under Pub. Officers L. § 87(2)(a), which allows
1 The proferred supplemental materials are even consistent with the January 11, 2011 affidavit of the Planning Board's acoustic consultant Gregory C. Tocci. Mr. Tocci notes that his estimation of project sound levels was 3 decibels (dBA) higher than SLW's, (Tocci Aff. ¶¶ 11-12), his estimation of existing background sound levels was 6.1 dBA lower than SLW's, (id., ¶ 16), and SLW's estimation was already 6 dBA higher than background, in an effort to meet NYSDEC's guidelines identifying an increase of 6 dBA as a cause for complaints. Id., ¶ 7. Cf. also Petition ¶ 46; Petitioner's Reply Br., 910. That is, the board was advised that the SLW project would result in an increase of at least 15.1 decibels over background (i.e., 3 + 6.1 + 6 dBA), an effect NYSDEC classifies as “objectionable.” Tocci Aff., Ex. B, 15, Table B. Compare Petitioner's Reply Br., 16, 17 (quoting CTA conclusion that, conservatively, the SLW project would result in an increase of 11.9 decibels over background, classified by NYSDEC as “very noticeable”). Cf. also CR 4256 (July 5, 2010 memo from Planning Board consultant, noting that issues with SLW's noise assessment remain unresolved); CR 4266-4272, 4286-4288 (subsequent memos from CTA, reiterating the same). All other citations to the record at Mathes Aff. ¶ 10 are to SLW's memos, rejecting these criticisms.

government agencies to withhold records that “are specifically exempted from disclosure by state or federal statute.” Cf. Resp. Planning Bd., Reply Mem. of Law. 11. However, as discussed below, CPLR § 4503(a)(1) is inapplicable because it applies to attorneys, not to town officials. Instead, town officials retain discretion to disclose materials that could be withheld as confidential, and that is what the supervisor did here. In that case, the privilege afforded attorney communications is waived. 12. Moreover, the facts and circumstances of this case implicate the policies behind both SEQRA and FOIL, to maximize disclosure and public access to government records.

The materials at issue are discoverable 13. The materials at issue are all relevant to the litigation, and may be dispositive of all the claims asserted under SEQRA. The disputed materials are therefore “material and necessary to the prosecution or defense of an action” and thus subject to “full disclosure.” CPLR § 3101(a). Petitioner's Reply Brief shows the precise relevance of each document among the disputed materials, and thus establishes that Petitioner has “substantial need of the materials in the preparation of the case” such that the materials are “otherwise discoverable under [CPLR § 3101(a)].” CPLR § 3101(d)(2). 14. Relevant materials that are discoverable under CPLR § 3101(d)(2)

should not be “concealed from an adversary's view.” D.D. Siegel, N.Y. PRACTICE 4TH, 558a (2005). Instead, their immunity should be withdrawn where a substantial need for the materials has been shown, and “disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation” is protected. CPLR § 3101(d)(2). 15. It is submitted that the materials at issue contain none of the features subject to the protective requirements of CPLR § 3101(d)(2) because none of them were prepared for litigation; they were prepared, importantly, instead for purposes of an environmental impact review that itself is subject to a policy to provide for maximum public participation in the review.

WPEG properly utilized FOIL to discover the materials at issue 16. Respondent Planning Board asserts that WPEG member Mr. Schneider's request for the supplemental materials at issue here was “prooperly denied” pursuant to the state Freedom of Information Law, Pub. Officers L. Art. 6 (“FOIL”), Pub. Officers L. § 87(2)(g). Mathes Reply Aff. ¶ 39. 17. The primary vehicle for discovery in an Article 78 matter is the disclosure requirements under FOIL. 18. “FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.” Capital Newspapers, Div. of Hearst Corp. v. Whalen, 505 N.E.2d 932, 936, 69 N.Y.2d 246, 252 (1987).

19. Draft or preliminary records shared with the developer in the course of a SEQRA review process are not inter- or intra-agency materials exempt from FOIL. Committee on Open Govt., Advisory Op. FOIL-AO-12388 (2000). This accounts for a substantial portion of the supplemental records at issue. The remainder are asserted to be exempt as “privileged correspondence” because they are email chains to which the Planning Board's special counsel was a party. Mathes Reply Aff. ¶ 3 and passim. 20. FOIL's presumption that disclosure is required should be applied liberally particularly in matters subject to SEQRA because of SEQRA's strong policy favoring maximum public participation. Envtl. Conserv. L. § 8-0103[6]; 6 N.Y.C.R.R. § 617.14(b). See generally Webster Associates v. Town of Webster, 85 A.D.2d 882, 446 N.Y.S.2d 955 (4th Dept. 1981) reversed on other grnds. 59 N.Y.2d 220, 451 N.E.2d 189 (1983).

FOIL does not prohibit the town supervisor from providing the materials at issue 21. FOIL does not require a government official to withhold materials that may be exempt from the public. Instead the statute states that the official “may deny access to records or portions thereof” that are requested and fall under one of eight enumerated FOIL exemptions. Pub. Officers L. § 87(2) (emphasis added). 22. Accordingly, cases cited by Respondent upholding agency authority to withhold materials under the inter- or intra-agency exemption to FOIL, (Pub.

Officers L. § 87(2)(g), are inapplicable, since a public officer of the Town provided the materials. Cf. Mathes Reply Aff. ¶ 39.2 23. Since the materials at issue were voluntarily disclosed, the exemption has been waived, and Respondent Planning Board has failed to meet its burden to demonstrate the contrary. New York 1 News v. Office of the Borough of Staten Island, 166 Misc. 2d 270, 275-276, 631 N.Y.S.2d 479, 484 (N.Y. Co. 1995), aff'd 231 A.D.2d 524, 647 N.Y.S.2d 270 (2nd Dept. 1996).

The materials at issue are not protected inter- or intra-agency communications 24. There is an exception to the inter- or intra-agency exemption to FOIL for materials that are “statistical or factual tabulations or data.” Pub. Officers L. § 87(2)(g)(i). 25. On appeal in New York 1 News, the Appellate Division, Second Department held that the exemption for inter- or intra-agency materials, on which Respondent now relies, is lost for “records which contain . . . factual information . . . or determinations upon which the agency relies,” as provided by Pub. Officers L. § 87(2)(g)(i). 231 A.D.2d at 525, 647 N.Y.S.2d at 271. “Factual observations are not exempt from disclosure, even in documents issued before final decision.” Id., 231 A.D.2d at 525, 647 N.Y.S.2d at 271-272 (citations
2 Nowhere in its papers does the Planning Board assert that Supervisor Hirschey is, or was at the time he disclosed the materials at issue, a member of WPEG and, in fact, Mr. Hirschey resigned from WPEG prior to taking office.

omitted). 26. Accordingly, “a report of an investigation of facts surrounding certain events . . . is not protected by the privilege.” Id. “'That the documents may have been furnished in confidentiality does not render them beyond the scope of FOIL disclosure.'” Id., 231 A.D.2d at 525, 647 N.Y.S.2d at 272 (quoting Matter of Bello v. State of N. Y. Dept. of Law, 208 A.D.2d 832, 833, 617 N.Y.S.2d 856, 857 (2nd Dept. 1994), and citing Washington Post Co. v. New York State Ins. Dept., 463 N.E.2d 604, 607, 61 N.Y.2d 557, 565 (1984) (FOIL “does not exclude or make any reference to information labeled as 'confidential' by the agency”). 27. For example, even an expressly confidential settlement agreement with an agency has been held subject to disclosure under FOIL. Palomino v. Gill, 4 Misc. 3d 1029A, 798 N.Y.S.2d 346, 2004 N.Y. Misc. LEXIS 1635 (N.Y. Co. 2004). 28. Here, the records asserted to be exempt from FOIL under the exemption for inter- or intra-agency materials are reports of the Planning Board consultants' investigation of the factual data on sound measurements provided by SLW as applicant, under FOIL their confidentiality is irrelevant, (Washington Post Co., 463 N.E.2d at 607, 61 N.Y.2d at 565), and the records should therefore be deemed “not protected by the privilege.” Farbman & Sons, 231 A.D.2d at 525, 647 N.Y.S.2d at 271-272. 29. In addition, Respondent Planning Board has not demonstrated that any harm to the board would result from disclosure, as it is required to do. Cirale v. 80

Pine Street Corp., 316 N.E.2d 301, 304, 35 N.Y.2d 113, 118-119 (1974); Burke v. Yudelson, 81 Misc. 2d 870, 875-876, 368 N.Y.S.2d 779, 785 (Monroe Co. 1975), aff'd 51 A.D.2d 673, 378 N.Y.S.2d 165 (4th Dept. 1976) (citing Cirale). 30. There has therefore been no showing that disclosure was inappropriate or unethical and, in light of the strong policy in favor of openness under FOIL and SEQRA, the Town Supervisor's unilateral disclosure furthers rather than circumvents the principles governing implementation of these statutes.

The materials at issue are available under FOIL 31. Asking, “what effect, if any, does the New York Freedom of Information Law have upon the curtailment of disclosure contained in article 31 of the CPLR and the common-law privilege of a governmental body?”, Supreme Court, Monroe County, in a decision affirmed by the Appellate Division, concluded that FOIL preempts CPLR Article 31 by expanding access to records that Article 31 would otherwise preclude. Burke v. Yudelson, 81 Misc. 2d 870, 875-876, 368 N.Y.S.2d 779, 785 (Monroe Co. 1975), aff'd 51 A.D.2d 673, 378 N.Y.S.2d 165 (4th Dept. 1976). 32. In particular, “information 'specifically exempted by statute' referred to in [fmr.] paragraph a of subdivision 7 of section 88 [now Pub. Officers L. § 87(2) (a)] does not contemplate the exemptions of CPLR article 31.” Id., 81 Misc. 2d at 877, 368 N.Y.S.2d at 787. Thus, FOIL does not include a specific exemption for privileged material.

33. Because the materials at issue were disclosed to Petitioner pursuant to FOIL, any privilege they may have had was waived. Cf. Comm on Open Govt., Advisory Op. FOIL-AO-9152 (1995) (“In my view, insofar as the records in question have been communicated between the Town and its adversary or have been filed with a court, any claim of privilege or its equivalent would be effectively waived. Once records in the nature of attorney work product or material prepared for litigation are transmitted to an adversary, i.e., from the Town to its adversary and vice versa, I believe that the capacity to claim exemptions from disclosure under §3101(c) or (d) of the CPLR or, therefore, §87(2)(a) of the Freedom of Information Law, ends.”). 34. In the first instance, Respondent's argument to the contrary overlooks the fact that withholding such records is permissive under the FOIL exemption, not mandatory. “In short, an assumption that records that may be withheld . . . are confidential and, therefore, exempted from disclosure by statute is inaccurate.” P. Salkin, N.Y. ZONING L. & PRAC. 4TH § 36B:53 (2010). 35. Secondly, the statute specifically states the privilege of confidentiality applies “[u]nless the client waives the privilege.” CPLR § 4503(a)(1). Here, the town by providing the communications has waived the privilege. “Disclosure of a privileged document generally waives that privilege unless the client intended to retain the confidentiality of the printed document and took reasonable steps to prevent its disclosure.” Baliva v. State Farm Mut. Auto. Ins. Co., 275 A.D.2d 1030, 1031-1032, 713 N.Y.S.2d 376, 377 (4th Dept. 2000) (citations omitted).

36. Thirdly, Respondent concedes the records were provided by town clerk at the direction of the town supervisor, pursuant to a legitimate FOIL request, and prior to the town's special counsel advising the clerk regarding disclosure. Mathes Reply Aff. § 24. The records were therefore provided at the discretion of the supervisor pursuant to FOIL. Respondent has not pointed to any steps taken to prevent disclosure. 37. Fourthly, the Planning Board has failed to “identify with any particularity those portions of the attorney-client communications which are not subject to disclosure under [FOIL,] Public Officers Law §87(2)(g),” and therefore the Court has little basis for determining whether there are portions of the communications “which [do] not disclose opinions, recommendations or statements of legal strategy [and therefore] will not be barred from disclosure under this exemption.” Orange County Publications v. County of Orange, 168 Misc. 2d 346, 637 N.Y.S.2d 596 (Orange Co. 1995) (citation omitted). Accordingly, the Planning Board has failed to meet its burden of showing a specific statutory protection for the requested materials and, in any case, the materials were provided by a public officer with discretion to do so. 38. Fifthly, as discussed above, confidentiality of records, even if it survived voluntary disclosure by the Supervisor, “does not render them beyond the scope of FOIL disclosure.” New York 1 News, 231 A.D.2d at 525, 647 N.Y.S.2d at 272.

WPEG has standing 39. Contrary to Respondent Planning Board's argument, there is no requirement that a New York corporation name a member or officer in the caption of its pleading. Unincorporated associations are so required. See Gen. Associations L. § 102 (“An action or special proceeding may be maintained, by the president or treasurer of an unincorporated association to recover any property, or upon any cause of action, for or upon which all the associates may maintain such an action or special proceeding, by reason of their interest or ownership therein, either jointly or in common.”). 40. However, New York corporations such as the Petitioner are entitled “[t]o sue and be sued in all courts and to participate in actions and proceedings, whether judicial, administrative, arbitrative or otherwise, in like cases as natural persons.” Bus. Corp. L. § 102(a)(2). See also N.Y. Const. Article X, § 4 (parallel language). 41. WPEG's corporate interests include the dissemination of accurate information about “wind power noise, flicker, health risks, [and] safety.” Byrne Aff., Ex. B (WPEG Articles of Oranization). 42. Thus, WPEG's corporate interest is directly related to the subject matter of this proceeding, as it alleges inter alia that demonstrably inaccurate information is the basis of the Planning Board's SEQRA determination in this matter, and that WPEG and the board's own consultants provided to the board accurate information which it disregarded without rational basis. See Petition ¶¶ 2, 7.

43. Even if WPEG was an unincorporated association failure to name an officer in its caption is not fatal. In Stephentown Concerned Citizens v. Herrick, 223 A.D.2d 862; 636 N.Y.S.2d 470 (3rd Dept. 1996), where the proceeding was commenced in the name of the association, rather than an officer, the court rejected the contention that there was a jurisdictional defect:
Such a defect is, however, not jurisdictional (see, Sackman v Maritas, 156 Misc 2d 939) and, given that respondents have failed to show any prejudice, the court may disregard any irregularity in the pleading (see, Gianunzio v Kelly, 90 A.D.2d 623; see also, Concerned Citizens v State of New York, 140 A.D.2d 842).

Likewise, in Concerned Citizens of Albany-Shaker Road v. State of New York, 140 A.D.2d 842, 528 N.Y.S.2d 230 (3d Dep't 1988), the court held that any such deficiency is “correctable.” 44. In Babcock Farms Neighborhood Association v. Town of Pittsford Planning Board, Index No. 12105/93 (Sup. Ct. Monroe Co. 1994), Justice (now District Judge) Siragusa refused, even after the statute of limitations had run, to dismiss a proceeding commenced in the name of an association, rather than an officer, since the defect was not jurisdictional, and “the deficiencies with respect to capacity and standing are readily correctable.” 45. Finally, WPEG previously litigated against the Cape Vincent town board based on its interest in unbiased, accurate information about the operation and impacts of industrial wind farms, where counsel for the town and SLW in the case at bar were the same. See Reinbeck Aff., Exs. D, F (2007 and 2009 trial and appellate court decisions in WPEG v. ZBA). Not only was standing granted to

WPEG in that case, but the fact of the litigation put respondents on notice as to WPEG's corporate identity and its interests.

WPEG meets the general standards for organizational standing. 46. To establish standing in a CPLR Art. 78 proceeding, an association or organization “must show that at least one of its members would have standing to sue.” New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211, 810 N.E.2d 405, 778 N.Y.S.2d 123 (2004). However, “proof of special damage or in-fact injury is not required in every instance.” Sun-Brite Car Wash, Inc. v. Board of Zoning Appeals, 69 N.Y.2d 406, 515 N.Y.S.2d 418 (1989). 47. In Sun-Brite Car Wash, Inc., (id.), the Court of Appeals held that petitioners are not even required to live in the “immediate vicinity,” and that nearby proximity may be enough to obtain standing. Other examples where courts have held that petitioners had standing if they owned property that was not in the “immediate vicinity” of a contested project include: Freundlich v. Town Board of Southampton, 73 A.D.2d 684, 422 N.Y.S.2d 215 (2nd Dept. 1979), aff’d 52 N.Y.2d 921, 437 N.Y.S.2d 664 (1981) (court granted standing to property owners “situated near” the contested use since it could reasonably infer negative impact from development of 18 lot subdivision); Rosch v. Town of Milton Zoning Board of Appeals, 142 A.D.2d 765, 530 N.Y.S.2d 321 (1988) (standing for property owner located 1/4 mile from parcel); Penfield Panorama Area Community, Inc. v. Town of Penfield Planning Bd., 253 A.D.2d 342, 688 N.Y.S.2d 848 (4th Dept.

1999) (residents in the general vicinity of proposed development on Old Penfield Road had standing to contest zoning approvals); Residents of Bergen Believe in Environment and Democracy, Inc. v. County of Monroe, 159 A.D.2d 81, 558 N.Y.S.2d 422 (4th Dept. 1990), app. dis’d 76 N.Y.2d 936, 563 N.Y.S.2d 65 (1991), mot. den’d 77 N.Y.2d 803, 568 N.Y.S.2d 15 (1991) (residents near proposed landfill have standing). 48. Here, comments submitted by WPEG and its members allege that property values would decline because they live near enough the project area to be adversely affected by visual and noise impacts, including specific elevation of sound levels compared to existing background levels, measured as numerical decibel increases. See, e.g., CR: 5680-5684, 5692-5696, 5707-5758 (technical report on noise), 5759-5760, 5776-5778 (Michael and Dolores Bell comment letter), 5784 (Sarah Boss comment letter), 5879-5899 (Clif Schneider comment letter with technical report on noise). Cf. Cohocton Wind Watch, LLC v. Schrader, Index No. 97760/08 (Steuben Co. Jan. 9, 2008) (court held that although specific injury was not required, several petitioners claimed that their proximity to wind project would cause a depreciation to their property values); Trude v. Town Board of the Town of Cohocton, 17 Misc. 3d 1104A, 851 N.Y.S.2d 61, 2007 N.Y. Misc. LEXIS 6578 (Steuben Co. 2007) (petitioners had standing different from public at large because of increased noise levels from proposed windmill project); Pang v. Planning Bd. of the Town of Sennett, No. 95-6620 (Cayuga Co. July 6, 1995) (petitioners granted standing even though they failed to allege direct harm where a

review of the planning board's minutes indicated allegations of direct harm which were different from the public at large). See also Chaplin v. Consolidated Edison of New York, Inc., 482 F.Supp. 1165 (S.D.N.Y. 1980) (“An organization’s standing to sue may be derived from allegations of injury to itself or to its members.”) (citing Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197 (1975)). 49. Recently the Court of Appeals has clarified that “residence close to a challenged project” is not “an indispensable element of standing in every environmental case.” Matter of Save the Pine Bush, Inc. v. Common Council of the City of Albany, 918 N.E.2d 917, 921, 13 N.Y.3d 297 305 (2009). In Save the Pine Bush, as here, petitioner members are “much more likely to suffer adverse impact from a threat to” the environmental amenities at the center of their concerns. Id. While the amenities at issue in Save the Pine Bush are the use and enjoyment of wildlife, (id.), here the amenities involve unobstructed view, and the peace and quiet of rural areas located away from a population center. Accordingly, the High Court held that even purely aesthetic interests confer standing, so long as they arise from a sufficiently particularized concern to preserve those interests:
a generalized “interest” in the environment could not confer standing to challenge environmental injury, but . . . injury to a particular plaintiff's “[a]esthetic and environmental well-being” would be enough.

Id. (quoted citations omitted). 50. The High Court granted standing to members of the environmental group Save the Pine Bush based on the group's goal to protect places that they care about, and repeatedly visit, but do not reside near. Id. Here, in the case at bar,

WPEG members reside near the SLW project area (which is quite large, cf. CR: 5026 (map)) and seek to protect the environmental amenities of the area in which they live, and at least one member lives very nearby the project area. See Bell Aff. passim; Byne Aff. ¶ 10 (WPEG president identifying Bell as a WPEG member). 51. Moreover, a noise model prepared by SLW shows 38 decibels of projects noise would reach nearly to the St. Lawrence River shoreline. CR: 1734. If nighttime background levels are about 29 dBA, as SLW says, (see Schneider Aff., Ex. B at 3), it can be expected that noticeable noise impacts, defined by DEC as an increase of 6 decibels or more above background, (Tocci Aff., Ex. B at 15), will be experienced even at WPEG President John Byrne's home. Cf. Mathes Reply Aff. ¶ 54. Clearly, then, it has been shown that the proximity of WPEG members to the project area could result in concrete harm, and their “use of a resource [quiet and scenic vistas] is more than that of the general public,” a showing Matter of Save the Pine Bush, Inc. holds is sufficient to confer standing. Id., 918 N.E.2d at 922, 13 N.Y.3d at 306. 52. Finally, both visual and noise impacts are not merely generalized environmental concerns, and fall squarely within the zone of interest protected by SEQRA, because the SEQRA regulations specifically list such impacts as elements of the environment. 6 N.Y.C.R.R. §§ 617.2(l), 617.7(c)(1)(i), 617.7(c)(1) (v), 617.20 Appendix B. 53. Where a petitioner’s interests “are within the 'zone of interest'

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