Hovey Island Lawsuit

FILED: JEFFERSON COUNTY CLERK 03/04/2024 04:11 PM INDEX NO.
EF2024-00000935
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
STATE OF NEW YORK

SUPREME COURT COUNTY OF JEFFERSON
7261 EGGLESTON LANE, LLC, and TESSA HEYER, as

Trustee of THE TESSA LORRAINE HEYER SUMMONS
REVOCABLE TRUST,
Index No. _________
Plaintiffs/Petitioners,
-against-
THE TOWN BOARD OF THE TOWN OF HENDERSON,

NEW YORK, THE TOWN OF HENDERSON, NEW
YORK, SUN COMMUNITIES, INC., and SUN
ASSOCIATION ISLAND RV LLC,
Defendants/Respondents.
TO THE ABOVE-NAMED DEFENDANTS/RESPONDENTS:
YOU ARE HEREBY SUMMONED to answer the Verified Petition/Complaint in this

action and to serve a copy of your answer on Plaintiffs/Petitioners’ attorneys within twenty (20)
days after the service of this Summons, exclusive of the day of service (or within thirty (30) days
after the service is complete if this Summons is not personally delivered to you within the State of
New York); and in case of your failure to answer, judgment will be taken against you by default
for the relief demanded in the Verified Petition/Complaint.
Plaintiffs/Petitioners designate Jefferson County as the place of trial. The basis of venue
is that Defendants/Respondents are municipal entities located in Jefferson County.
Dated: March 4, 2024

Rochester, New York WEAVER MANCUSO BRIGHTMAN PLLC
By:
John A. Mancuso, Esq.
Lauren Baron, Esq.
Attorneys for Plaintiffs/Petitioners
150 Allens Creek Road, Suite 240
Rochester, New York 14618
(585) 301-4777
jmancuso@wmbpllc.com
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FILED: JEFFERSON COUNTY CLERK 03/04/2024 04:11 PM INDEX NO. EF2024-00000935
STATE OF NEW YORK

SUPREME COURT COUNTY OF JEFFERSON
7261 EGGLESTON LANE, LLC, and TESSA HEYER, VERIFIED

as Trustee of THE TESSA LORRAINE HEYER PETITION/COMPLAINT
REVOCABLE TRUST,
Plaintiffs/Petitioners, Index No. ________________
-against-
THE TOWN BOARD OF THE TOWN OF

HENDERSON, NEW YORK, THE TOWN OF
HENDERSON, NEW YORK, SUN COMMUNITIES,
INC., and SUN ASSOCIATION ISLAND RV LLC,
Defendants/Respondents.
Plaintiffs/Petitioners, 7261 Eggleston Lane, LLC, and Tessa Heyer, as Trustee of the Tessa
Lorraine Heyer Revocable Trust (collectively, “Petitioners”), by their attorneys Weaver Mancuso
Brightman PLLC, as and for their Verified Petition/Complaint against Defendants/Respondents the
Town Board of the Town of Henderson, New York (the “Town Board”), the Town of Henderson,
New York (the “Town”), Sun Communities, Inc., and Sun Association Island RV LLC (collectively,
the “Developer”) states as follows:
INTRODUCTION
1. Petitioners bring this hybrid action/proceeding pursuant to CPLR Article 78 and §
3001, New York State Municipal Home Rule Law, New York State Town Law, Article 7 of the New
York State Public Officers Law (the “Open Meetings Law”), the New York State Environmental
Quality Review Act (“SEQRA”), and other legal authorities.
2. The Town is a picturesque lakefront community that lies in the heart of the Golden
Crescent on the Eastern shore of Lake Ontario. On December 29, 2023, the Town, pursuant to Local
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Law #2 of 2023, rezoned environmentally sensitive property known as “Hovey Island” located at
15530 Snowshoe Road in the Town (P/O Tax Map. No. 97.00-1-11) (the “Project Site”), to a
Planned Development District in order to pave the way for the development of an oversized and
unsuitable 117-unit campground for the Developer’s Sun Communities RV Park expansion (the
“Project”). A true and accurate copy of Local Law #2 of 2023 is attached as Exhibit “A.”
3. Despite the sensitive nature of the Project Site and the potential for numerous
significant impacts on Town residents and character, the Town throughout the review process
attempted to shield documents from public review and scrutiny, making it difficult, if not impossible,
for many members of the public to understand the status of the Project or adequately prepare to
discuss the project during its review by the Town.
4. The Town’s efforts carried through the SEQRA review process and adoption of Local
Law #2 of 2023, whereby the Town failed to hold a public hearing on proposed local law in violation
of Municipal Home Rule Law, and refused to post a copy of the proposed Negative Declaration to
the Town’s website in violation of the mandates of the Open Meetings Law.
5. Of course, these were not the only fatal defects in the Town’s process. Numerous
potentially significant adverse environmental impacts were identified during the Town’s SEQRA
review process. Yet, the Town refused to acknowledge that the Project may have even one
potentially significant impact on the environment.
6. The Town ignored potential significant adverse impacts, deferred resolution of critical
environmental issues, and cut short its environmental review without the safeguards of an
environmental impact statement, including a review of possible alternatives which has been
characterized as the heart of the SEQRA process. Accordingly, Petitioners bring this action to set
aside the Negative Declaration and declare Local Law #2 invalid and void.
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PARTIES
7. 7261 Eggleston Lane LLC is a domestic limited liability company organized under
the laws of the State of New York, with an address of 3462 Long Shadow Drive, Baldwinsville, New
York 13027.
8. 7261 Eggleston Lane LLC is the owner of real property located at 7261 Eggleston
Lane in the Town of Henderson. The foregoing property is on Snowshoe Bay in close proximity to,
and with a direct view of, the Project Site. The members of 7261 Eggleston Lane LLC, including
without limitation, their family members and invitees, use the property, Snowshoe Bay and the area
surrounding the property for recreation, fishing, swimming, and boating, and regularly spend their
time on the property and around Snowshoe Bay to explore and enjoy the unique environmental and
cultural resources of the area. The Project will interfere with and/or adversely impact the property,
including without limitation, the use and enjoyment of Snowshoe Bay and the surrounding area, by
increasing noise, lighting, and water pollution, and impacting the viewshed and visual aesthetics of
the area. The Project will also lead to increased negative impacts on traffic along Snowshoe Road,
both in connection with the construction and operation of the Project, as well as the proposed
widening of Snowshoe Road, which provides the sole means of access to Eggleston Lane and the
property, thereby impacting safety and access to the property, as well as safety issues and boating
congestion around Snowshoe Bay. The Project will also negatively impact the neighborhood and
damage or reduce property values. By reason of the foregoing, the Project will cause petitioner
unique and direct harm that is within SEQRA’s zone of interests, as compared to other members of
the public at large that do not own property on, or use or enjoy Snowshoe Bay.
9. Tessa Lorraine Heyer, as Trustee of the Tessa Lorraine Heyer Revocable Trust (the
“Trust”), is an individual residing at 3462 Long Shadow Drive, Baldwinsville, New York 13027.
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10. Tessa Lorraine Heyer, as Trustee of the Trust, is the owner of real property located at
7297 Eggleston Lane in the Town of Henderson. The foregoing property is on Snowshoe Bay in
close proximity to, and with a direct view of, the Project Site. Ms. Heyer and the Trust, including
without limitation their family members and invitees, regularly use, and/or reside at, the property
year-round as a second home, and use Snowshoe Bay and the area surrounding the property for
recreation, fishing, swimming, and boating, and regularly spend their time on the property and
around Snowshoe Bay to explore and enjoy the unique environmental and cultural resources of the
area. The Project will interfere with and/or adversely impact the property, including without
limitation, the use and enjoyment of Snowshoe Bay and the surrounding area by increasing noise,
lighting, and water pollution, and impacting the viewshed and visual aesthetics of the area. The
Project will also lead to increased negative impacts on traffic along Snowshoe Road, both in
connection with the construction and operation of the Project, as well as the proposed widening of
Snowshoe Road, which provides the sole means of access to Eggleston Lane and the property,
thereby impacting safety and access to the property, as well as safety issues and boating congestion
around Snowshoe Bay. The Project will also negatively impact the neighborhood and damage or
reduce property values. By reason of the foregoing, the Project will cause petitioners unique and
direct harm that is within SEQRA’s zone of interests, as compared to other members of the public at
large that do not own property on, or use or enjoy Snowshoe Bay.
11. The Town Board is the governing board of the Town of Henderson, New York, with
an address of 12105 Town Barn Road, Henderson, New York 13650.
12. The Town is a municipal corporation organized under the laws of the State of New
York with an address of 12105 Town Barn Road, Henderson, New York 13650.
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13. Upon information and belief, Sun Communities, Inc. is a foreign corporation
organized under the laws of the state of Michigan, and Developer of the Project, with an address of
27777 Franklin Road, Suite #300, Southfield Michigan 48024.
14. Upon information and belief, Sun Association Island RV LLC is a foreign limited
liability company organized under the laws of the state of Michigan, and the owner of the Project
Site, with an address of 27777 Franklin Road, Suite #300, Southfield Michigan 48024.
JURISDICTION AND VENUE
15. This Court has jurisdiction over this action/proceeding pursuant to CPLR Article 78.
16. Jefferson County is the proper venue for this action/proceeding pursuant to CPLR §§
506 and 7804, as it is the county where the material events at issue took place.
FACTUAL BACKGROUND
17. The Project Site is a 34-acre vacant island known as “Hovey Island” located in the
Town’s Island Zoning District and situated in Snowshoe Bay and Henderson Bay.
18. The oversized Project proposed by the Developer will entail the substantial and
adverse alteration of the Project Site through excavation and the development of on-site roadways
and utility infrastructure to support the construction of up to 117 cabins for seasonal occupancy, a
community building, a dock containing a maximum of 10 slips, a boat ramp, maintenance building,
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outdoor recreational facilities, a wastewater collection system, a water distribution system,
stormwater management facilities, site lighting, and parking.
19. The Project is a “Type I” action under SEQRA because it meets one or more
thresholds under SEQRA regulations. The fact that the Project is 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 [Environmental Impact Statement]” (see 6 NYCRR § 617.4[a][1]).
20. The Developer originally submitted for pre-application review of the Project by the
Town of Henderson Planning Board in 2022. However, recognizing that the Town’s current Zoning
Law authorized development within the Town’s Island Zoning District that “might result in
development that tends to adversely impact the unique nature of existing uses in the Town’s Island
District and/or the vision of future uses within the same district,” and further recognizing the Town
Board’s “obligation to promote the health, safety, and welfare of the general public within the Town
of Henderson,” the Town Board adopted Local Law No. 1 of 2022, imposing a six-month
moratorium on certain applications within the Island Zoning District.
21. Despite recognizing that developments such as the Project would adversely impact
the Town’s Island Zoning District, including the Project Site, the Town Board ultimately declined to
adopt any updates, revisions, or amendments to the Town’s Zoning Law.
22. In August 2023, the Developer through a series of submissions, submitted Part 1 of
the Full Environmental Assessment Form (“EAF”), requesting that the Town Board declare its intent
to serve as Lead Agency for the Project under SEQRA and create a Planned Development District
(“PDD”) under Town Code § 150-11 to facilitate the development of the Project.
23. During the Town Board meeting held on September 12, 2023, the Town Board
adopted a resolution declaring its intent to act as Lead Agency for purposes of undertaking a
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coordinated review of the Project under SEQRA. A true and accurate copy of the minutes of the
September 12, 2023, Town Board meeting is attached as Exhibit “B.”
24. On September 12, 2023, the Town Board also adopted a resolution to set “[a] public
hearing on the Application by Sun Community, Inc. for a PDD on Hovey Island for a proposed
campground . . .” (see Ex. B).
25. As reflected in the resolution, the Town Board is required to hold a public hearing on
the proposal within 45 days of receiving the Town Planning Board recommendation.
26. The resolution scheduling the public hearing on the Developer’s application for a
PDD (see Ex. B) was adopted pursuant to Town Code § 150-11.
27. Town Code § 150-11(B)(5) provides that “[w]ithin forty-five (45) days of receiving
the Planning Board recommendation, the Town Board shall hold a public hearing on the proposal.
Within forty-five days after the hearing has closed, the Town Board shall deny, approve, or approve
with modifications the application for the Planned Development District and its site plan.”
28. On October 6, 2023, in connection with the Town’s Board’s ongoing review of the
Project as Lead Agency under SEQRA, the firm of SWBR was retained to review Part 1 of the Full
EAF and the Developer’s proposed plans.
29. As reflected by its detailed report, SWBR opined that the Project may result in
numerous potentially significant adverse impacts on the environment, requiring the preparation of an
Environmental Impact Statement (“EIS”). True and accurate copies of the SWBR report and
enclosure letter are attached as Exhibit “C.”
30. On October 10, 2023, the Jefferson County Department of Planning submitted a letter
to the Town commenting on the Project. A true and accurate copy of the Jefferson County
Department of Planning’s comments are attached as Exhibit “D.”
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31. On October 30, 2023, in connection with the Town’s Board’s ongoing review of the
Project as Lead Agency under SEQRA, a further report prepared by SWBR was submitted to the
Town Board commenting on the traffic study. True and accurate copies of the SWBR report and
enclosure letter are attached as Exhibit “E.”
32. On November 8, 2023, in connection with the Town’s Board’s ongoing review of the
Project as Lead Agency under SEQRA, further reports prepared by SWBR were submitted to the
Town Board commenting on stormwater management and environmental permitting. True and
accurate copies of the SWBR reports and enclosure letter are attached as Exhibit “F.”
33. The public hearing on the Developer’s application was continued by the Town Board
over a period of several months. Ultimately, during the Town Board meeting held on November 28,
2023, the Town Board closed the public hearing on the Developer’s application for a PDD.
34. On December 5, 2023 at 10:12 a.m., in connection with the Town’s Board’s ongoing
review of the Project as Lead Agency, further reports prepared by SWBR were submitted to the
Town Board commenting on the Developer’s November 17, 2023 submission. True and accurate
copies of the SWBR reports and enclosure letter are attached as Exhibit “G.”
35. As of December 5, 2023 at 10:12 a.m., the Town Board had not yet made a
determination of significance under SEQRA.
36. Yet, the Town Attorney responded in a series of emails that the December 5, 2023
submission is “not part of the record and should not be considered by the Town Board” and that
“[n]o one has a right to submit additional public comments to the Board in regard to SEQR, or the
application, at this stage.” A true and accurate copy of the December 5, 2023 email exchange
between counsel is attached as Exhibit “H.”
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37. During the Town Board meeting held on December 5, 2023, the Town Board adopted
a resolution determining that the Project will not have any significant adverse environmental impact
and issuing a Negative Declaration for the Project.
38. In response to a Freedom of Information Law request, the Town provided copies of
Parts 1, 2, and 3 of the Full EAF, the Negative Declaration, and the adopted resolution. True and
accurate copies of the foregoing documents are attached as Exhibit “I.”
39. Upon information and belief, the Town Board did not consider the December 5, 2023
submission by SWBR in making its determination of significance under SEQRA.
40. In contrast, the Developer was permitted to revise its Environmental Assessment
Report on December 4, 2023—after the close of the public hearing— and submit it along with other
information to the Town Board. Upon information and belief, the Town Board considered this
supplemental information in making its determination of significance under SEQRA.
41. Thereafter, upon information and belief, the Town Board caused a draft local law
(Local Law #2 of 2023) to be prepared to rezone the Project Site.
42. The Town Board did not hold a public hearing on Local Law #2 of 2023.
43. During the Town Board meeting held on December 28, 2023, the Town Board
adopted a resolution enacting Local Law #2 of 2023, which rezoned the Project Site from Island
District to PDD in connection with the development of the Project. Local Law #2 of 2023 was filed
with the New York State Secretary of State on December 29, 2023 (see Ex. A).
FIRST CAUSE OF ACTION

(Declaratory Judgment – Violation of Open Meetings Law)
44. Petitioners repeat and reallege paragraphs 1 through 43 of the Verified
Petition/Complaint as if more fully set forth herein.
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45. Despite the sensitive nature of the Project and the potential impact on the residents
and character of the Town, and numerous objections to the Town Board, the Town over the course of
the review of the Project refused to readily make available to the public documents and other
information concerning the Project, often necessitating requests for records under the Freedom of
Information Law. This made it difficult, if not impossible, for many members of the public to
understand the status of the Project or adequately prepare to observe or discuss the Project at Town
Board or Planning Board meetings.
46. Under Section 103(e) of the Open Meetings Law:
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 at least
twenty-four hours prior to the meeting during which the records will
be discussed. . . . . If the agency in which a public body functions
maintains a regularly and routinely updated website and utilizes a
high speed internet connection, such records shall be posted on the
website to the extent practicable at least twenty-four hours prior to
the meeting (emphasis added).
47. The Town maintains a regularly and routinely updated website.
48. The Town uses a high-speed internet connection.
49. Based on the information contained on the Town’s website and the regularity in
which the website is updated, it is practicable for the Town to post documents, communications, and
other information that is scheduled to be the subject of discussion by the Town Board during an open
meeting at least 24 hours prior to a Town Board meeting.
50. Upon information and belief, as of November 28, 2023, a draft of the Negative
Declaration was prepared in connection with the Project.
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51. Upon information and belief, a draft of the Negative Declaration dated November 28,
2023 was in the possession of one or more members of the Town Board prior to the Town Board
meeting on November 28, 2023.
52. The Project was on the Town Board agenda for its November 28, 2023 meeting.
53. Upon information and belief, Part 2 of the Full EAF and the Negative Declaration
were scheduled to be the subject of discussion by the Town Board during the November 28, 2023
meeting.
54. Despite this, the draft Negative Declaration was not included in the material posted to
the Town’s website in advance of the November 28, 2023 Town Board meeting.
55. The Town had the capability and the opportunity to include the draft Negative
Declaration in the materials posted to the Town’s website in advance of the November 28, 2023
meeting, but failed to provide it, as mandated by the Open Meetings Law.
56. As demonstrated by the other materials discussed at its meetings in 2023 (including
proposed resolutions involving other Town business), there is no valid reason why posting the draft
Negative Declaration in advance of the November 28, 2023 meeting was not practicable.
57. Upon information and belief, the Town Board’s failure to post the draft of the
Negative Declaration to the Town’s website in advance of the November 28, 2023 Town Board
meeting was an intentional violation of the Open Meetings Law designed to deprive members of the
public of the opportunity to review the Negative Declaration in advance of the meeting.
58. Pursuant to Section 107(1) of the Open Meetings Law, “[i]f the court determines that
a public body has violated this article, the court may require the members of the public body to
participate in a training session concerning the obligations imposed by this article conducted by the
staff of the committee on open government.”
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59. Pursuant to Section 107(2) of the Open Meetings Law, “[i]n any proceeding brought
pursuant to this section, costs and reasonable attorney fees may be awarded by the court, in its
discretion, to the successful party.”
60. By reason of the foregoing, Plaintiffs are entitled to judgment: (i) awarding attorneys’
fees, costs, and disbursements against the Town in an amount to be determined at the conclusion of
this proceeding due to the Town’s blatant violation of the Open Meetings Law; and (ii) directing that
all Town officials are required to participate in Open Meetings Law training.
SECOND CAUSE OF ACTION

(Declaratory Judgment – Violation of Open Meetings Law)
62. Upon information and belief, the Town Board adjourned its meeting on November
28, 2023 for purposes of continuing its discussion of Part 2 of the Full EAF and the Negative
Declaration at a special meeting scheduled for December 5, 2023.
63. Upon information and belief, Part 2 of the Full EAF and the Negative Declaration
were scheduled to be the subject of discussion by the Town Board during the December 5, 2023
Town Board meeting.
64. In advance of the December 5, 2023 meeting, the Town posted to its website a Notice
that the Town Board “will be holding a Workshop and Public Meeting to follow to discuss Sun
Communities proposed development of Hovey Island . . .” A true and accurate copy of the Notice is
attached as “Exhibit J.”
65. As part of the Notice, the Town posted a blank Part 2 of the Full EAF and a draft
resolution adopting a negative declaration to the Town’s website.
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66. Despite this, the draft Negative Declaration itself—prepared as of November 28,
2023—was not included in the Notice posted to the Town’s website in advance of the December 5,
2023 Town Board meeting.
67. The Town had the capability and the opportunity to include the draft Negative
Declaration in the materials posted to the Town’s website in advance of the December 5, 2023
meeting, but failed to provide it, as mandated by the Open Meetings Law.
68. As demonstrated by the other materials discussed at its meetings in 2023 (including
proposed resolutions involving other Town business), as well as the posting of the Notice of the
December 5, 2023 meeting, which included other records that were scheduled to be the topic of
discussion by the Town Board concerning the Project, there is no valid reason that posting the draft
Negative Declaration in advance of the December 5, 2023 meeting was not practicable.
69. Upon information and belief, the Town Board’s failure to post the Negative
Declaration to the Town’s website in advance of the December 5, 2023 Town Board meeting was an
intentional violation of the Open Meetings Law designed to deprive members of the public of the
opportunity to review the Negative Declaration in advance of the meeting.
70. The Town Board’s adoption of the December 5, 2023 resolution approving the
Negative Declaration for the Project was done in violation of Section 103(e) of the Open Meetings
Law, and Petitioners have demonstrated good cause to void the Negative Declaration.
71. By reason of the foregoing, Plaintiffs are entitled to judgment: (i) declaring the
Negative Declaration invalid and void; (ii) awarding attorneys’ fees, costs, and disbursements
against the Town in an amount to be determined at the conclusion of this proceeding due to the
Town’s blatant violation of the Open Meetings Law; and (iii) directing that all Town officials are
required to participate in Open Meetings Law training.
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72. Because the Negative Declaration was approved in violation of the Open Meetings
and should be set aside, Local Law #2 of 2023 is also invalid and void.
THIRD CAUSE OF ACTION

(Declaratory Judgment – Violation of Town Zoning Law
and New York Municipal Home Rule Law)
74. Pursuant to Section 150-11(B) of the Town Zoning Law, “[t]o establish a Planned
Development District, the Zoning map must be amended in accordance with the following
procedures and the regulations for amendment to the Zoning Law (Article 1, §150-3).”
75. Pursuant to Section 150-3(A) of the Town Zoning Law, “[t]he Town Board may from
time to time on its own motion or on petition, amend, supplement, or repeal the regulations and
provisions of this law after appropriate public notice and hearing, as required by law.”
76. Pursuant to Section 20(5) of the New York Municipal Home Rule Law, no local law
shall be approved unless a public hearing is held on five days’ advance notice.
77. The Town failed to notice or conduct a public hearing on proposed Local Law #2 of
2023 in violation of the Town Zoning Law and New York Municipal Home Rule Law.
78. By reason of the foregoing, Plaintiffs are entitled to judgment declaring Local Law
No. 2 of 2023 invalid and void.
FOURTH CAUSE OF ACTION

(CPLR Article 78 — Violation of SEQRA)
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80. The Project is a Type I action and, therefore, carries with it the presumption that the
Project is likely to have a significant adverse impact on the environment and may require the
preparation of an EIS (see 6 NYCRR § 617.4[a]).
81. SEQRA provides that, prior to making a determination of significance, the Town
Board was required to “thoroughly analyze the identified relevant areas of environmental concern to
determine if the action may have a significant adverse impact on the environment” (see 6 NYCRR §
617.7[b][3]).
82. Part 2 of the Full EAF reviewed by the Town Board identified several potential
environmental impacts in connection with the Project, including but not limited to, impacts on land;
surface water; groundwater; flooding; plants and animals; aesthetic resources; historic and
archeological resources; open space and recreation; transportation; energy; noise, odor, and light;
and consistency with community plans and community character.
83. The Negative Declaration is legally deficient because the Town Board relied on
flawed or incomplete information, and the Town Board otherwise failed to take the necessary “hard
look” at numerous environmental impacts in violation of SEQRA.
84. Despite the Town identifying the potential for several significant impacts, as well as
acknowledging in its moratorium that development in the Town’s Island Zoning District may result
in adverse impacts to the unique nature of the property within the district (i.e., the Project Site), the
Town improperly determined that the Project will not have a single adverse environmental impact,
issuing a Negative Declaration that impermissibly cut short the SEQRA process.
85. The Town Board failed to exercise its critical judgment on all issues presented in the
Full EAF and improperly deferred consideration and resolution of the potential impacts on land,
transportation, flooding, cumulative impacts, and other areas of environmental concern.
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A. The Town Board Failed to Properly Consider Potential Significant Impacts on Land
86. 6 NYCRR 617.7(c)(1) (viii) identifies “a substantial change in the use, or intensity of
use, of land including agricultural, open space or recreational resources, or in its capacity to support
existing uses” as an indicator of significant adverse impacts on the environment.
87. The Town Board answered “Yes” to Question 1 (impacts to land) on Part 2 of the Full
EAF, but answered “no, or small impact may occur” with respect to sub-questions (e) concerning
construction that will continue for more than one year or in multiple phases, and (g) concerning the
Project being in a Coastal Erosion hazard area.
88. As set forth in the Full EAF Workbook, “[c]onstruction that takes more than a year or
that has multiple phases can cause impacts related but not limited to: ongoing traffic disruptions, use
of heavy equipment with high noise levels, stockpiles of soils and materials, and other visual signs of
construction that result in longer-term visual changes to the character of the area, or other ongoing
noise or odor nuisances” (available at https://dec.ny.gov/regulatory/permits-licenses/seqr/eaf-
workbooks/part-2-identification-of-potential-project-impacts/q1-impact-on-land).
89. The answer to question D.1.e of Part 1 of the Full EAF indicates that the number of
phases is to be determined, “TBD,” because the “timing and duration of future phases is dependent
upon the number of cabins leased per year.
90. Construction of the Project will disrupt the surrounding area, and a prolonged
construction schedule, coupled with potentially years of traffic burdening the roadway network in
the Town, including Snowshoe Road, as cabins are transported to the Project Site in future
development phases, is a long-term moderate to large impact that was not adequately assessed by the
Town Board and may result in a significant adverse impact to the residents.
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91. The Project Site is also located within a Coastal Hazard Area, which requires a
Coastal Zone Consistency Review in accordance with the Coastal Zone Management Act. The
Town Board failed to evaluate the potential impacts of the Project on this environmentally sensitive
area, instead stating in conclusory fashion that the Project “will comply with federal and state
Coastal Zone Consistency and the permitting will include any additional mitigation measures so that
the Project will not result in any impact on coastal erosion” (see Ex. I at 4).
92. The Town Board failed to exercise its critical judgment on all issues presented in the
Full EAF, improperly delegated its responsibility to another agency, and improperly deferred
consideration and resolution of the potential impacts to development within a Coastal Hazard Area
(as well as any mitigation measures). The Town Board’s statement that future permitting will
include additional mitigation measures does not absolve the Town from its obligations to adequately
assess relevant environmental impacts under SEQRA.
93. The potential impact of the Project on development within a Coastal Hazard Area is a
moderate to large impact that was not adequately assessed by the Town Board and may result in a
significant adverse impact on the environment.
B. The Town Board Failed to Properly Consider Potential Significant Impacts on Ground
and Surface Water
94. The Project proposes the use of bioretention ponds to manage stormwater and provide
water quality treatment for the Project. According to the New York State Stormwater Design
Manual, the bottom of the infiltration facility must be separated by at least three feet vertically from
the seasonally high-water table or bedrock layer.
95. However, Part 1 of the Full EAF indicates that the depth to bedrock is generally
within 3.3 feet of the surface, and soil borings further indicate that depth to bedrock is generally less
than 6.58 feet. Factoring in the depths and various layers necessary to construct a bioretention area,
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the Developer failed to provide sufficient evidence that the use of bioretention ponds is feasible at
the Project Site, to adequately manage stormwater resulting from the Project.
96. The Town Board failed to properly evaluate potential impacts on surface water
because an ineffective bioretention system will result in the discharge of pollutants into the
surrounding waterbodies and may result in a significant adverse impact on the bay area.
97. The Town Board failed to take the requisite hard look at the impact of the Project on
the existing wastewater infrastructure and Wastewater Treatment Plant located on Associated Island.
98. The Project indicates that the sanitary sewer collection system will connect to the
existing Wastewater Treatment Plant on Associated Island.
99. Appendix E of the Impact Analysis and Mitigation Measures prepared by Colliers
Engineering considered average day flows and the Negative Declaration relies on average day flows
of wastewater (Ex. I at 7-8). However, the Recommended Standards for Wastewater Facilities
indicate that the design peak hourly flow shall be used to evaluate the effect of hydraulic peaks on
the system (see Ex. L).
100. Therefore, the Town Board failed to properly evaluate the wastewater demand
because the impact of the proposed project on the existing Wastewater Treatment Plant and
associated sewer infrastructure has been underestimated and the Project may result in a sewer
overflow into the surrounding waterbodies.
C. The Town Board Failed to Properly Consider Potential Significant Impacts on

Transportation.
101. The Town Board answered “Yes” to Question 1 (impacts on transportation) on Part 2
of the Full EAF, but answered “no, or small impact may occur” with respect to sub-questions (a)
through (e).
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102. However, in the Negative Declaration, the Town Board identifies a mitigative
measure to reduce the traffic impact by widening Snowshoe Road to a width of 28 feet to satisfy
New York State Department of Transportation criteria (Ex. I at 2).
103. The environmental impacts of the proposed road widening of Snowshoe Road were
not evaluated by the Town Board as part of their SEQRA review, which upon information and belief
would require the Town Board to exercise the power of eminent domain.
104. The Town Board also failed to evaluate how the delivery of the cabins will impact
local and emergency traffic.
105. Construction of the Project will be very disruptive to the surrounding area, and a
prolonged construction schedule, coupled with potentially years of traffic burdening the roadway
network in the Town, including Snowshoe Road, as cabins are transported to the Project Site in
future development phases, is a long-term moderate to large impact that was not adequately assessed
by the Town Board and may result in a significant adverse impact to the residents.
D. The Town Board Failed to Properly Consider Potential Significant Impacts on Flooding.
106. The Negative Declaration indicates that the Project “may include additional
embankments along the access road to the Project to account for high lake levels” (Ex. I at 4).
107. The environmental impacts of constructing such embankments or their impact on
flooding or erosion were not considered, and the construction of such embankments may have a
moderate to large impact on flooding that was not adequately assessed by the Town Board and may
result in a significant adverse impact to the residents.
108. Plans for such improvements should have been prepared and evaluated by the Town
Board as part of the environmental review of the Project.
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E. The Town Board Failed to Properly Consider Potential Significant Impacts on Human
Health.
109. The Town Board summarily concluded that “[t]he Project will not result in any
impacts/hazards to human health” without any further explanation or elaboration (Ex. I at 7).
110. The Town Board failed to conduct any evaluation regarding whether the Project may
have an impact on human health from exposure to new or existing sources of contaminants.
111. As set forth above, the Project will result in several moderate to large impacts that
may negatively impact human health, including the potential impact on the existing sewer system
that may result in an overflow discharge from the sewer system and an ineffective bioretention
system that will result in the discharge of pollutants into the surrounding waterbodies.
112. The impact on human health from the potential exposure of the public to
contaminants and bacteria from such discharges should have been evaluated.
F. The Town Board Failed to Property Consider Impacts on Community Character.
113. The Town Board answered “Yes” to Question 18 (consistency with community
character) on Part 2 of the Full EAF and further acknowledged that a moderate to large impact may
occur with respect to the Project’s demand for additional community services (e.g., schools, police,
and fire).
114. As explained in the FEAF Workbook, “[p]art of a community's character comes from
the community services that are available because those contribute to the sense of community
residents have. Growth and development can change this part of community character by bringing in
more people to an area, who in turn, demand more in public services. This demand can result in the
need for municipalities to build more schools, parks, roads, and infrastructure, or can bring in crime
and the need for additional police, fire and emergency services” (available at
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https://dec.ny.gov/regulatory/permits-licenses/seqr/eaf-workbooks/part-2-identification-of-potential-
project-impacts/q18-consistency-with-community-character).
115. Parroting the conclusory statements provided by the Developer, the Negative
Declaration indicates that “[t]here has been no indication by local police and fire official that
community police and fire services are currently inadequate to respond to the community needs of
the Project” (see Ex. I at 6).
116. However, the Jefferson County Department of Planning commented that “[t]he local
board should consider emergency vehicle access over the lone lane bridge that serves as the access to
both Hovey’s Island and Association Island. The Town should discuss this with the Town’s
emergency services agencies. The Town Engineer should review the traffic study to determine if the
one-lane bridge is adequate access for the proposed project and current RV park traffic level.
Exploring the feasibility of widening the bridge to two lanes should be considered to ensure
emergency access and vehicle accessibility in to the future” (see Ex. D).
117. A private road provides the only means of access to the Project Site and Association
Island. Flooding, snow, roadway collapse, and/or vehicle accidents could all prevent access by first
responders to these areas.
118. The Town Board’s environmental review failed to adequately consider the impact of
these issues on the community service providers, including failing to consider all the comments from
the Jefferson County Department of Planning.
G. The Town Board Failed to Properly Consider Cumulative Impacts.
119. The Town Board summarily concludes that there will be no cumulative impacts from
the Project (Ex. I at 8).
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120. The SEQR Handbook provides examples where cumulative impacts should be
considered, including “[a] single action carried out in steps or phases, such as the construction of an
industrial park that will gradually add separate businesses that discharge to a single receiving water,
the construction of a residential subdivision in phases (each increasing the traffic impacts at a
common access point), or the rebuilding of a highway, including road widening . . .” (available at
https://extapps.dec.ny.gov/docs/permits_ej_operations_pdf/seqrhandbook.pdf).
121. The proposed Project will be carried out in multiple phases and result in the discharge
of stormwater to a single receiving water body and increase traffic impacts at a common access point
because Snowshoe Road is the only ingress and egress point for the Project. The widening of
Snowshoe Road has also been proposed as a mitigation measure for the Project.
122. The Town Board failed to adequately assess the cumulative impacts of the Project
with respect to impacts on land, stormwater, and traffic.
H. The Town Board Failed to Take a Hard Look at All Identified Areas of Concern.
123. Prior to the Town Board making a determination of significance under SEQRA, the
Town Board was provided further reports dated December 5, 2023 prepared by SWBR commenting
on the Developer’s November 17, 2023 submission and potential impacts of the Project on the
environment (see Ex. G).
124. Despite the Town Board as lead agency being required to thoroughly analyze the
identified areas of environmental concern to determine if the action may have a significant adverse
impact on the environment, the Town Attorney improperly rejected the December 5, 2023 SWBR
submission and, as a result, the Town Board did not consider the submission in making its
determination of significance under SEQRA.
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125. The Town Attorney’s rejection of the December 5, 2023 SWBR submission on the
ground that the public hearing on the Developer’s application for a PDD was closed is erroneous
because the submission was made in connection with the Town’s Board’s obligations as lead agency
under SEQRA—not the creation of the PDD—and the Town Board’s obligation to review
environmental impacts continues until it makes a determination of significance.
126. The Town Attorney’s rationale is also directly undercut by the fact that the Town
permitted the Developer to revise its Environmental Assessment Report on December 4, 2023—after
the close of the public hearing— and submit it to the Town Board.
127. The Town Board’s consideration of the Developer’s submissions and rejection of
SWBR’s submission in making its determination of significance under SEQRA is in violation of
lawful procedure, and arbitrary and capricious.
128. The Town failed to overcome or rebut the presumption that the Project may have a
significant adverse effect on the environment.
129. Because the Town failed to properly identify the relevant areas of environmental
concern, take a “hard look” at several environmental impacts identified in Part 2 and during the
SEQRA review of the Project, including but not limited to impacts on land, water resources,
flooding, human health, transportation systems, community character, or cumulative impacts, and
render an adequate reasoned elaboration sufficiently establishing that the Project will have no
significant adverse environmental impacts, the Town failed to strictly comply with the requirements
of SEQRA.
130. By reason of the foregoing, the Negative Declaration and Local Law No. 2 of 2023
should be rejected, annulled, and/or set aside as made in violation of lawful procedure, affected by
error of law, arbitrary and capricious, and an abuse of discretion.
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WHEREFORE, Plaintiffs/Petitioners demands judgment against Defendants/Respondents as
follows:
A. On the First Cause of Action, a judgment: (i) awarding attorneys’ fees, costs, and
disbursements against the Town in an amount to be determined at the conclusion of this proceeding
due to the Town’s blatant violation of the Open Meetings Law; and (ii) directing that all Town
officials are required to participate in Open Meetings Law training;
B. On the Second Cause of Action, a judgment (i) declaring the Negative Declaration
and Local Law No. 2 of 2023 invalid and void; (ii) awarding attorneys’ fees, costs, and
disbursements against the Town in an amount to be determined at the conclusion of this proceeding
due to the Town’s blatant violation of the Open Meetings Law; and (iii) directing that all Town
officials are required to participate in Open Meetings Law training;
C. On the Third Cause of Action, declaring Local Law No. 2 of 2023 invalid and void;
D. On the Fourth Cause of Action, rejecting, annulling, and/or setting aside the Negative
Declaration and Local Law No. 2 of 2023 as made in violation of lawful procedure, affected by error
of law, arbitrary and capricious, and an abuse of discretion;
D. Awarding Plaintiffs such other and further relief as may be just and equitable.
Dated: March 4, 2024

Rochester, New York WEAVER MANCUSO BRIGHTMAN PLLC
By:
John A. Mancuso, Esq.
Lauren Baron, Esq.
Attorneys for Plaintiffs/Petitioners
150 Allens Creek Road, Suite 240
Rochester, New York 14618
(585) 301-4777
jmancuso@wmbpllc.com
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VERIFICATION
STATE OF NEW YORK )

) ss.:
COUNTY OF MONROE )
JOHN A. MANCUSO, being duly sworn, deposes and says: that he is an attorney for
Plaintiffs/Petitioners 7261 Eggleston Lane, LLC, and Tessa Heyer, as Trustee of the Tessa
Lorraine Heyer Revocable Trust, in this action/proceeding; that he has read the foregoing
Verified Petition/Complaint, and knows the contents thereof; that the same is true to the
knowledge of the deponent, except as to the matters alleged upon information and belief; and
that as to those matters he believes them to be true.
That the reason this verification is made by the deponent and not by the defendant is that
Plaintiffs/Petitioners do not now reside within the County of Monroe, where deponent resides
and has his office; and the sources of deponent's information and the grounds of his belief as to
all matters herein stated are the records of said Plaintiffs/Petitioners and the results of an
investigation into this matter, conducted on behalf of said Plaintiffs/Petitioners.
OHN A. MANCUSO
Sworn to before me this

4d'
day of March, 2024
tary Public
JESSALEE HARTLE
Notary Public, State of New York
No.01HA6390276
Qualified in Monroe Coun
Commission Expires April 15,
26 of 26

Hovey Island Lawsuit

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Hovey Island Lawsuit

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FILED: JEFFERSON COUNTY CLERK 03/04/2024 04:11 PM INDEX NO.

STATE OF NEW YORK

7261 EGGLESTON LANE, LLC, and TESSA HEYER, as

THE TOWN BOARD OF THE TOWN OF HENDERSON,

TO THE ABOVE-NAMED DEFENDANTS/RESPONDENTS:

YOU ARE HEREBY SUMMONED to answer the Verified Petition/Complaint in this

Dated: March 4, 2024

STATE OF NEW YORK

7261 EGGLESTON LANE, LLC, and TESSA HEYER, VERIFIED

Plaintiffs/Petitioners, Index No. ________________

THE TOWN BOARD OF THE TOWN OF

the “Developer”) states as follows:

1. Petitioners bring this hybrid action/proceeding pursuant to CPLR Article 78 and §

Quality Review Act (“SEQRA”), and other legal authorities.

discuss the project during its review by the Town.

potentially significant impact on the environment.

an address of 12105 Town Barn Road, Henderson, New York 13650.

27777 Franklin Road, Suite #300, Southfield Michigan 48024.

JURISDICTION AND VENUE

outdoor recreational facilities, a wastewater collection system, a water distribution system,

stormwater management facilities, site lighting, and parking.

an EIS [Environmental Impact Statement]” (see 6 NYCRR § 617.4[a][1]).

moratorium on certain applications within the Island Zoning District.

adopt any updates, revisions, or amendments to the Town’s Zoning Law.

September 12, 2023, Town Board meeting is attached as Exhibit “B.”

campground . . .” (see Ex. B).

PDD (see Ex. B) was adopted pursuant to Town Code § 150-11.

EAF and the Developer’s proposed plans.

enclosure letter are attached as Exhibit “C.”

Department of Planning’s comments are attached as Exhibit “D.”

enclosure letter are attached as Exhibit “E.”

determination of significance under SEQRA.

between counsel is attached as Exhibit “H.”

and issuing a Negative Declaration for the Project.

accurate copies of the foregoing documents are attached as Exhibit “I.”

submission by SWBR in making its determination of significance under SEQRA.

supplemental information in making its determination of significance under SEQRA.

(Local Law #2 of 2023) to be prepared to rezone the Project Site.

FIRST CAUSE OF ACTION

44. Petitioners repeat and reallege paragraphs 1 through 43 of the Verified

Petition/Complaint as if more fully set forth herein.

Board or Planning Board meetings.

46. Under Section 103(e) of the Open Meetings Law:

Agency records available to the public pursuant to article six of this

47. The Town maintains a regularly and routinely updated website.

48. The Town uses a high-speed internet connection.

meeting at least 24 hours prior to a Town Board meeting.

Declaration was prepared in connection with the Project.

meeting on November 28, 2023.

staff of the committee on open government.”

discretion, to the successful party.”

SECOND CAUSE OF ACTION

61. Petitioners repeat and reallege paragraphs 1 through 60 of the Verified

Petition/Complaint as if more fully set forth herein.

Declaration at a special meeting scheduled for December 5, 2023.

Town Board meeting.

attached as “Exhibit J.”

resolution adopting a negative declaration to the Town’s website.

2023 Town Board meeting.

opportunity to review the Negative Declaration in advance of the meeting.

required to participate in Open Meetings Law training.

THIRD CAUSE OF ACTION

73. Petitioners repeat and reallege paragraphs 1 through 72 of the Verified

Petition/Complaint as if more fully set forth herein.