Here's my Petition (I do not include the first page which is the notice of petition, with all the technical stuff):
Article 78 Petition
SUPREME COURT OF THE STATE OF NEW YORK
VERIFIED PETITION and COMPLAINT
Index No.[filled in later]
RJI No.
In the Matter of
ROBIN SEGAL
Petitioner - Plaintiff
For a Judgment Pursuant to Article 78 of the CPLR and
Declaratory Judgment
- against –
JEFF MORAN, WOODSTOCK , NY
Respondents - Defendants
Petitioner/Plaintiff alleges as follows:
THE PARTIES
Petitioners – Plaintiffs
1. Petitioner/Plaintiff Robin Segal is a property owner of and resident at 7 Evergreen Lane , Woodstock , NY
Respondents – Defendants
2. Respondent/Defendant is Woodstock , NY
VENUE
3. This proceeding is properly venued in Ulster County as that is the county in which Woodstock , New York
RELEVANT REGULATIONS
4. The New York State Environmental Quality Review Act (SEQRA), directs all state and local agencies to act as a steward of the environment and that in their regulation of the activities of individuals and corporations they shall do so that a due consideration is given to preventing environmental damage”. ECL ' Section 8-0103(9).
SUMMARY OF PROCEEDING
5. This is a combined proceeding brought pursuant to Article 78 of the Civil Practice Laws and Rules to annul a July 01, 2010 determination by the Woodstock, NY Planning Board to adopt the Environmental Quality Review Findings Statement for Woodstock Commons; SPR 05- 322 & SUP 05-361 (Exhibit 1).
6. Woodstock Planning Board adopted the Environmental Quality Review Findings Statement despite its containing statements of intended action that if carried out will be unlawful, rendering adoption of these statements based on error of law.
7. Woodstock Planning Board adopted the Environmental Quality Review Findings Statement despite its containing statements of intended action that are physically or legally impossible to carry out, making their adoption arbitrary and capricious.
8. Woodstock Planning Board adopted the Environmental Quality Review Findings Statement despite its containing several statements of fact that are internally contradictory, making their adoption ambiguous, and therefore arbitrary and capricious.
9. Woodstock Planning Board adopted the Environmental Quality Review Findings Statement despite its containing several statements of fact that are plainly in error, making their adoption not based on fact, and therefore arbitrary and capricious.
10. Woodstock Planning Board is comprised of seven members, minus one who recused himself from hearing the application for this project. Three of the remaining six members have clear conflicts of interest with the applicant, and therefore all decisions rendered by the Planning Board should be set aside.
PROJECT BACKGROUND
11. The Findings Statement concerns a proposal by Rural Ulster Preservation Company, Inc. (“RUPCO”) as applicant (the “Applicant” or “Project Sponsor”) before the Town of Woodstock Planning Board for development of “Woodstock Commons” (the “Project”), an affordable, intergenerational housing community for seniors and families, consisting of a total of 52 units of rental housing, a caretaker’s unit, and supporting improvements within a development envelope (or maximum disturbance area) of 9.640 acres in the northerly and primarily upland portion of a single 28.026-acre parcel (the “Project Site”).
12. The Project Site, designated as Section 27.55, Block 2, Lot 3, on the Tax Maps of the Town of Woodstock
13. Prior to the Woodstock Planning Board becoming Lead Agency in RUPCO’s application to build Woodstock Commons affordable housing project, Woodstock Town
14. The Affordable Housing Committee, which had already accepted the advice and input from RUPCO, recommended that the town of Woodstock
15. The Town of Woodstock did very little towards the other two options, putting an emphasis and undue burden on the Woodstock Commons project’s ability and duty to provide affordable housing in the Town of Woodstock
16. Beginning in 2004, The Town of Woodstock and the Woodstock Planning Board, now chaired by Paul Shultis, Jr. have followed all of the required steps in the SEQR process, including but not limited to establishing the Planning Board as lead agency, establishing the project as a Type I action, creating a scoping document, accepting, after comments and consideration, a Draft Environmental Impact Statement, and then accepting, after a requisite period set forth for comments and consideration but not necessarily considering, the public’s comments, a Final Environmental Impact Statement, and finally, the very Findings Statement that plaintiff hereby alleges was adopted in significant part arbitrarily and capriciously, and in significant part based on error of law.
AS AND FOR A FIRST CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
17. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 16 as if fully set forth.
18. Woodstock Planning Board acted arbitrarily and capriciously in accepting this statement on page 3 of the Findings Statement: “The senior units will consist of 20 one-bedroom units exclusively for people age 55 or older with incomes ranging from below 30% to a maximum of 60% of adjusted mean income (“AMI”) as established annually by the U.S. Department of Housing and Urban Development.”
19. AMI is in fact defined as Area Median Income, not Adjusted Mean Income. The difference between area and average, and between median and mean, certainly make adoption of this wrongly defined term arbitrary and capricious.
20. In its correct definition, “Area” means county. What does the Woodstock Planning Board think “adjusted” means? This is an unstated and therefore arbitrary definition of an income threshold meant to be used to define eligibility for housing in Woodstock Commons.
21. Mean is not equal to median. Mean means average, and median means middle data point in a data set. This difference also will lead to a discrepancy between the intended and the actually adopted term “AMI”.
22. Furthermore, since the Findings Document originally was drafted by RUPCO, and only edited and barely altered by the Planning Board’s professional planner, this also raises the question of whether RUPCO even knows the meaning of “AMI.” If RUPCO is indeed attempting to adjust household income in some way, in what way is this being done?
23. If the “A” in “AMI” stands for “Adjusted,” not “Area,” as RUPCO and the Woodstock Planning Board seem to think, then that brings up another question: what area is RUPCO drawing from if not the “Area” defined by HUD in the true “Area Median Income” definition?
24. Likewise with the difference between “Median” and “Mean.” If in fact RUPCO is calculating some mean, or average income, instead of median income, this will lead to the wrong standards being used, and therefore will also make the housing ineligible to receive tax credits for affordable housing construction, if the error produces an upper eligibility threshold on the high side. If the error is on the low side, persons of higher incomes will incorrectly be denied housing because of the income requirement having been defined and calculated incorrectly.
25. It is vital that all parties involved in bringing Woodstock Commons to Woodstock
26. Due to this arbitrarily and capriciously defined term, AMI, Woodstock Planning Board’s acceptance of the Findings Statement must be set aside.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
27. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 26 as if fully set forth.
28. Woodstock Planning Board acted illegally and arbitrarily and capriciously in accepting this statement on page 3 of the Findings Statement: “Preference will be given to qualifying “creative artists” in the leasing of 12 of the units.”
29. Woodstock Planning Board wrongly replaced “artist” with “creative artist.” The term “artist” has a legal definition, and it is not within Woodstock
30. The set aside for artists’ housing is made possible by the 2008 Housing and Economic Recovery Act (H.R. 3221-231).
Section 3004, called “Other Simplification and Reform of Low-Income Housing Tax Incentives” includes:
(g) CLARIFICATION OF GENERAL PUBLIC USE REQUIREMENT.—
Subsection (g) of section 42 is amended by adding at the end of the following new paragraph:
“(9) CLARIFICATION OF GENERAL PUBLIC USE REQUIREMENT.—
A project does not fail to meet the general public use requirement solely because of occupancy restrictions or preferences that favor tenants—
“(A) with special needs,
“(B) who are members of a specified group under a Federal program or State program or policy that supports housing for such a specified group, or
“(C) who are involved in artistic or literary activities.”
Section 3004, called “Other Simplification and Reform of Low-Income Housing Tax Incentives” includes:
(g) CLARIFICATION OF GENERAL PUBLIC USE REQUIREMENT.—
Subsection (g) of section 42 is amended by adding at the end of the following new paragraph:
“(9) CLARIFICATION OF GENERAL PUBLIC USE REQUIREMENT.—
A project does not fail to meet the general public use requirement solely because of occupancy restrictions or preferences that favor tenants—
“(A) with special needs,
“(B) who are members of a specified group under a Federal program or State program or policy that supports housing for such a specified group, or
“(C) who are involved in artistic or literary activities.”
31. This text means that anybody who can show that they are “involved in artistic or literary activities” can qualify as an artist. RUPCO and Woodstock
32. It is also possible that Woodstock
33. I personally sent a letter to the Woodstock Planning Board, calling their attention to the Congressional definition of “artist” as it applies to housing in Woodstock Commons. (Exhibit 2) Despite this call to attention, Woodstock Planning Board persisted in defining the term “artist” in a way other than that required by the act that makes the artist housing set aside possible. The contents of this letter also were submitted, by me, in a set of twenty-two comments,(Exhibit 3) during the comment period following Woodstock Planning Board’s acceptance of the Final Environmental Impact Statement.
34. Woodstock Planning Board’s adoption of the Findings Statement was arbitrary and capricious because it did not use a legal definition of “artist,” which is a group that will have preference in obtaining housing, which makes their adoption of the Findings Statement arbitrary and capricious.
35. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside.
AS AND FOR A THIRD CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
36. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 35 as if fully set forth.
37. Woodstock Planning Board acted arbitrarily and capriciously in accepting the Findings Statement that specifies that a non-existent corporate entity, one with no legal standing to own anything, will own the housing complex known as Woodstock Commons.
38. The ownership entity, in the Findings Statement defined as “Playhouse and Elwynn Associates, LLP,” does not at present exist, nor is it on the verge of being created.
39. Two legal entities with similar names do exist, and they are “Playhouse and Elwynn Limited Partnership,” and “Playhouse and Elwynn Associates LLC.”
40. Playhouse and Elwynn Limited Partnership has been described by RUPCO as the ultimate owner of Woodstock Commons, and NY Division of Corporation papers to this effect substantiate this claim. Playhouse and Elwynn Associates LLC is a wholly owned subsidiary of RUPCO, and is the general partner of Playhouse and Elwynn Limited Partnership.
41. Playhouse and Elwynn Associates LLP is a nonexistent and ambiguous corporate name that can never exist unless the existing Playhouse and Elwynn Associates LLC ceases to exist because the former is a confusing form of the latter and would be disallowed by the New York Division of Corporations.
42. Furthermore, in New York State
43. It is unclear whether this nonexistent and ambiguous corporate name was supposed to be either of the two existing corporate names, since in the past RUPCO, which was the body that authored the first draft of the Woodstock Planning Board’s Findings Statement, used a nonexistent corporate name for several years, in violation of their right.
44. I personally called the Woodstock Planning Board’s attention to RUPCO’s unauthorized use of the other corporate name, (Woodstock Commons Limited Partnership,) (Exhibit 4) in a letter dated March 1, 2010. (Exhibit 5) Woodstock Planning Board therefore should have at least verified when their professional planner claimed authorship of the Findings Statement, that the corporate name was in fact the correct one. The contents of this letter also were submitted, by me, (Exhibit 3) during the comment period following Woodstock Planning Board’s acceptance of the Final Environmental Impact Statement. Woodstock Planning Board failed to note that RUPCO’s proposed owner of Woodstock Commons is a nonexistent corporate entity with no legal standing.
45. Woodstock Planning Board acted arbitrarily and capriciously in not confirming the proper name of the ownership entity of Woodstock Commons.
46. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since the document names a nonexistent and disallowed corporate entity as owner of Woodstock Commons.
AS AND FOR A FOURTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
47. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 46 as if fully set forth.
48. Woodstock Planning Board has not studied the degrading effects of the bicycle paths in the wetlands that RUPCO claims will NOT be developed, therefore its acceptance of plan to build paths for pedestrians and bicycles is arbitrary and capricious.
49. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since no study of the degradation of wetlands as a result of bicycle paths has been performed.
AS AND FOR A FIFTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
50. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 49 as if fully set forth.
51. Woodstock Planning Board, on page 20 of the Findings Statement, uses a future decision (the Town Board’s affirmative vote to allow the housing project to access both water and sewer district services) to support a past decision to site the housing in its currently planned location.
52. Woodstock Planning Board assumes that water and sewer will be available to the housing, which would have necessitated such a determination prior to counting on the availability of those utility services, not after the decision to accept the Findings Statement was made.
53. Woodstock Planning Board acted arbitrarily and capriciously by inverting the order of decisions necessary to rely on the water and sewer utilities to make a case for siting the housing where it currently is proposed.
54. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since reliance on water and sewer, which is arbitrary and capricious, and premature, is a cornerstone of the site selection.
AS AND FOR A SIXTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
55. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 54 as if fully set forth.
56. Woodstock Planning Board, on page 22 of Findings Statement, in a category called Environmental Setting, Impacts and Mitigation Measures, lists thirteen categories of man-made environmental factors, but this list excludes noise.
57. Woodstock Planning Board accepts RUPCO’s table of construction equipment decibel levels, and otherwise does not question noise pollution.
58. I personally delivered letters to each Woodstock Planning Board members on March 1, 2010, raising the issue of noise pollution from the planned bandstand in the housing development’s outdoor area. (Exhibit 6) Woodstock Planning Board ignored my letter, and the issue of noise pollution. The contents of this letter were also submitted, by me, during the comment period following Woodstock Planning Board’s acceptance of the Final Environmental Impact Statement.
59. In addition to this noise source, RUPCO failed to produce decibel levels for geothermal well drilling, while geothermal wells, up to fifty-three of them at three hundred feet each, will be drilled on the project site. No noise estimate was produced by any party (except me) showing the noise disturbance during the construction period. (Exhibit 7) The contents of this letter also were submitted, by me, (Exhibit 3) during the comment period following Woodstock Planning Board’s acceptance of the Final Environmental Impact Statement. Fifty-three wells multiplied by three hundred feet is over three miles of drilling, and RUPCO responded to this by asking whether anybody minded some other neighbors drilling their geothermal well years earlier.
60. Woodstock Planning Board did not ask RUPCO to produce any noise estimates for the geothermal well drilling, nor for the bandstand music noise, in fact, a video I recorded shows RUPCO asking Woodstock Planning Board whether there were any complaints during a brief geothermal well drilling in the same neighborhood, as though the absence of recorded noise complaints in one project suggests that the noise level in an entirely different project featuring approximately 20 times the number of wells would not be a problem. (Video reference that cannot be transcribed because many people spoke at the same time: http://www.youtube.com/user/brandybottlebates#p/u/11/WBEAmIabKhM )
61. Woodstock Planning Board acted arbitrarily and capriciously by cursorily dismissing the significant noise sources that will be produced by the project both during construction, from the geothermal well drilling, and during the life of the project, from the bandstand.
62. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since failure to measure, estimate, or even consider noise disturbance, during construction and in the future blatantly disregards the auditory environment of neighborhood residents.
AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
63. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 62 as if fully set forth.
64. Woodstock Planning Board has not independently studied the relationship between pedestrian safety and Woodstock
65. A project engineer, meaning RUPCO’s engineer, opined that Playhouse Lane Woodstock
66. I do not know why the (late) building inspector was asked for his opinion on horizontal road curvature or vertical road curvature, or what the value of his opinion is or was, but the record reflects his approval of the waiver. The record does not, but should reflect that his son is chair of the Woodstock Planning Board.
67. Woodstock Planning Board’s failure to have the horizontal curvature and vertical curvature waivers on Playhouse Lane studied by independent engineers (not RUPCO engineers and not a Woodstock Planning Board member’s relative, or non-engineers) shows that Woodstock Planning Board’s acceptance of these waivers is arbitrary and capricious, and that Woodstock Planning Board did not take a hard look at the issue of pedestrian safety on Playhouse Lane. There is no documentation that this issue was studied, but only some meetings occurred, apparently, and only one letter, apparently by the fire chief AND the building inspector AND the highway superintendent, declare their joint approval of these waivers.
68. Horizontal curvature and vertical curvature standards exist to protect both pedestrians and vehicles. Woodstock Planning Board did not hire a qualified specialist such as an independent highway engineer to assess the waiver, but simply relied on three, with regard to this very technical engineering specialty, laypeople, relying on their titles, not their qualifications.
69. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since Playhouse Lane
AS AND FOR AN EIGHTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
70. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 69 as if fully set forth.
71. Woodstock Planning Board, on page 55 of the Findings Statement, claims that “Pedestrian access will be provided by both a pedestrian walkway to Playhouse Lane and a natural surface walking trail to Bradley Meadows shopping plaza,” even though the natural surface walking trail to Bradley Meadows will be useless unless an easement from Bradley Meadows shopping plaza property is granted to Woodstock Commons residents and all other pedestrians, and upon information and belief, it is not within Woodstock Planning Board’s scope to assume that this easement will happen and it has not yet been granted as of this writing.
72. Absent the easement through Bradley Meadows shopping plaza, it is incorrect and misleading to call the pedestrian walkway at Woodstock Commons “access,” since it accesses nothing but private property with no easement, current or guaranteed in the future.
73. Likewise, the pedestrian access to Playhouse Lane Playhouse Lane
74. The Playhouse Lane Playhouse Lane Playhouse Lane
75. Playhouse Lane is already a narrow road, and no pedestrian walkways currently exist, which now is not problematic since there is so little vehicular traffic that there are never two cars passing one another and a pedestrian.
76. Woodstock Commons will produce considerable traffic, and pedestrian access along Playhouse Lane
77. Woodstock Planning Board acted arbitrarily and capriciously when it stated that pedestrians at Woodstock Commons would have pedestrian access when in fact pedestrians will have only safe and well-designed walkways on the property developed by RUPCO. Woodstock Planning Board failed to take a hard look at the logic of the proposed pedestrian routes from housing to town center. Once beyond the property on which Woodstock Commons is applying to be built, pedestrians will be, as far as we know now, trespassing or walking along a road that has failed its horizontal curvature design standard, and has no clear shoulder upon which to walk.
78. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since pedestrian access from and to Woodstock Commons, which is central to this project being located in the hamlet itself, is both premature to declare, and questionable as to its safety.
AS AND FOR A NINTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
79. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 78 as if fully set forth.
80. Woodstock Planning Board has omitted entirely the requirement for any study of pedestrian safety. All mention of pedestrian safety appears scattered throughout only select other topics.
81. This results in the omission of pedestrian safety concerns when Woodstock Planning Board wishes to avoid the topic. For example, the following statement and the text that follows it considers pedestrian traffic and vehicular traffic, but not pedestrian safety:
82. “The Woodstock Commons EIS addresses the probable effects of the proposed development on Traffic and Transportation including consideration of vehicular traffic, pedestrian traffic and public transportation.” (Exhibit 1, p. 69)
83. Woodstock Planning Board accepted a study from the applicant that declared that there were a small number of pedestrians observed during the AM and PM rush hours. What the study failed to specify is that the AM and PM rush hours refer to vehicular rush hours, which are defined by rushing (in a vehicle) to and from work. Because pedestrians do not rush to and from work on foot during the same rush periods, pedestrian movement is spread out throughout the day. Woodstock Planning Board accepted a study that could not have derived this because observation of pedestrian activity was admittedly conducted only during two brief periods.
84. I can personally attest to the fact that I see more people walking on Playhouse Lane
85. Woodstock Planning Board did not take a hard look at pedestrian safety, but only a cursory look, by accepting a very incomplete study based on erroneous assumptions of when people walk in the neighborhood, and therefore its judgment of this matter is arbitrary and capricious.
86. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since Woodstock Planning Board did not take a hard look at pedestrian safety around Woodstock Commons.
AS AND FOR A TENTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
87. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 86 as if fully set forth.
88. Woodstock Planning Board accepted a flawed “inventory of existing roadway network conditions including conduct of detailed turning movement counts at ten (10) intersections within the vicinity of the Project Site during peak traffic hours.” (Exhibit 1, p. 70)
89. Although the methodology used was standard, the study failed to capture a very large number of cars posing a hazard in the main intersection that constitutes the primary access (existing) road to the housing project.
90. When I showed this omission to Woodstock Planning Board, in a letter submitted March 1, 2010, (Exhibit 8) I was told that the hazardous car movements did not fit within the methodology that was used, and therefore their existence and hazard would not be counted in the detailed study.
91. Woodstock Planning Board accepted the omission of the cars backing into the intersection from the parking lot because RUPCO engineer explained that when cars back into the intersection, it is not an intersection, which, I can only assume, means that when cars drive in the same intersection, it is an intersection. This logic is so twisted that it can only be understood as a result of a great effort to avoid counting the parked cars entering and exiting the intersection as intersection traffic.
92. The reason that there was non-standard traffic in the intersection in the first place is because the intersection violates acceptable access management rules for intersections, so the cars posing the danger are not supposed to be there in the first place. That is the reason there was no place for them in the standard methodology. Standard methodologies are useful when situations are standard, as opposed to non-standard and unsafe situations.
93. In this case, it is not additional traffic that would introduce a hazard in the intersection, but rather an existing traffic hazard that would be unacceptably exacerbated by the addition of the traffic projected by the project engineers.
94. Woodstock Planning Board failed to take a hard look at the cars backing out into the intersection of Playhouse Lane
95. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since critical traffic and safety data were thrown out for the sake of unjustified convenience and simplification, and nothing more.
AS AND FOR AN ELEVENTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
96. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 95 as if fully set forth.
97. Woodstock Planning Board uses an undisclosed number of its own members’ personal familiarity with the parking lot at Playhouse Lane Woodstock , NY
98. “The Planning Board members have personal familiarity with the intersection and how it is used and do not find this off-site and pre-existing condition significantly impacted by the Woodstock Commons project,.”(Exhibit 1, p.72)
99. Woodstock Planning Board admits that there is a hazard resulting from the cars backing out of the parking lot, into the intersection, but that this hazard is not enough even to count these cars in the rush hour period car count, let alone the traffic simulation of that very intersection.
100. Woodstock Planning Board members’ familiarity with any parking lot or intersection is no more than any other layperson’s familiarity with any other traffic movement. The voluntary service of Planning Board members does not qualify them to make judgments about complex traffic patterns that will only emerge in the future, and must now be simulated by traffic professionals, of which there are none serving on Woodstock Planning Board.
101. In addition to not being traffic engineers or traffic experts of any kind, nor being involved in any traffic or road safety issues in their routine duties on Woodstock Planning Board, the members also claim, further on page 72, referencing additional traffic from Woodstock Commons entering the intersection, that “nor does it pose significant safety threat based upon the administrative record.”
102. The administrative record referred to excludes accidents in which there was no personal injury, vehicular damage less than $1000 and that were not reported. In addition to this record, which in just the last two years has seen at least three accidents in this intersection that are recorded in an administrative record, three more accidents were “nonreported” and so were not in the official administrative record.
103. The additional three, and therefore six accidents in an 18-month period were made known to at least one member of Woodstock Planning Board. Woodstock Planning Board has rejected this additional evidence, which is comprised of anecdotes and photographs. The town newspaper, Woodstock Times, dedicated a front-page story to the safety, or lack thereof, at this intersection. This article interviewed many people including the (past) chief of police. Yet, Woodstock Planning Board would rather rely on its own members’ casual familiarity with this intersection, not only to judge its safety in the present, but also to, not all together as a board, but separately and silently, to simulate its safety level after the addition of hundreds of trips per day and a vehicular turning traffic (as opposed to driving straight through) increase of about five hundred percent.
104. Woodstock Planning Board did the opposite of take a hard look at the projected additional traffic’s effect on the intersection’s safety. The professional engineers hired by the applicant could not come to any reasonable conclusions since it was they who refused to count the parking lot cars in the first place. Woodstock Planning Board members are non-expert town residents who substituted their casual observations for an unacceptable absence of work by credentialed and experienced experts.
105. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since critical traffic and safety data were guessed at, which is the definition of arbitrary and capricious.
AS AND FOR A TWELFTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
106. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 105 as if fully set forth.
107. Woodstock Planning Board claims to have analyzed “the use, width and configurations of the roads, legal title easements, right-of-ways and filed map depictions; all as detailed within the EIS,” (Exhibit 1, p. 74) however the EIS contains two contradictory widths of Playhouse Lane
108. It is critical that one of those measurements disqualifies the projected traffic volume as too great; meaning that the road is not wide enough for the amount of traffic that it will carry, according to the design standards subscribed to by Woodstock Planning Board and RUPCO.
109. The contradictory stated widths of Playhouse lane, in one place cited by one engineer as “23 feet” and in another place by another engineer as “17-20 feet” was contained in a letter sent to all members of Woodstock Planning Board.
110. One member of Woodstock Planning Board asked RUPCO representatives how wide Playhouse Lane Playhouse Lane
111. No further questions or attention ever was paid to this road width contradiction.
112. Woodstock Planning Board not only did not take a hard look at the contradictory stated widths of Playhouse Lane, but its members did not think that it was strange that engineers who can design roads cannot measure the width of a road, even after I wrote a letter to Woodstock Planning Board about this March 1, 2010. (Exhibit 9)
113. I personally hired my neighbors, who are 6 years old and 7 years old, to measure the road’s width in several places. What this shows is that if children in first and second grade can solve a contradiction with a tape measure, then Woodstock Planning Board did not take a hard look at this contradiction.
114. Furthermore, this measurement contradiction was meaningful in that the larger (and false) measurement exempted the project from having to widen the road, while the smaller (true) measurement will jeopardize the project since the applicant does not have the right to widen the road, as it is not within the land to be developed by the applicant.
115. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since Woodstock Planning Board knowingly ignored an internal contradiction in the Environmental Impact Statement that suggests that the access road to the housing project is illegally narrow.
AS AND FOR A THIRTEENTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
116. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 115 as if fully set forth.
117. Woodstock Planning Board mischaracterized a section of road, labeling it an intersection, and beyond that, its analysis was faulty since it misidentified the road section in the first place.
118. This faulty analysis produced, not surprisingly, an erroneous conclusion about the safety at the very place the housing project access road is proposed to meet the existing town road.
119. Furthermore, Woodstock Planning Board did not even study this issue until I personally brought up the issue and supplied the access management guidelines that Woodstock Planning Board claims in the Finding Statement that it used.
120. One cannot reach a reasonable conclusion if one starts with faulty assumptions. In this case, Woodstock Planning Board characterized a bend in a road as an intersection, and based on that error alone, all analysis concerning access management in that region of the road was misleading.
121. It is relevant that upon information and belief, no independent traffic analyst or other expert was retained to study this raised concern. It was the work of the Woodstock Planning Board or its professional planner, herself not a traffic specialist, but who wrote the final draft of the Findings Statement. The hard look that was supposed to happen is nowhere documented, and the decision to call this bend in the road an intersection was arbitrary and capricious.
122. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since Woodstock Planning Board did not take a hard look at the safety at the access road’s meeting the town road, but only quoted a document that was presented to the Planning Board at a late date (by me), and cited a different conclusion, based on an erroneous assumption.
AS AND FOR A FOURTEENTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
123. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 122 as if fully set forth.
124. Woodstock Planning Board claims that there is ample water in the hamlet water district to serve Woodstock commons(Exhibit 1, p. 79) however Woodstock Planning Board fails to analyze the effect on day-to-day neighborhood water pressure that tripling the current neighborhood demand would have on the contiguous and near contiguous neighbors.
125. This failure constitutes an arbitrary and capricious leap from the opinion that there is enough water over all, to there being high enough water pressure delivered to neighborhood houses.
126. A simulation of firefighting water pressure was presented to Woodstock Planning Board, (Exhibit 1, p. 80) and this simulation concluded that while nearby houses would experience a failing water pressure for firefighting, the firefighting water pressure at Woodstock Commons would be adequate.
127. It is beyond arbitrary and capricious that Woodstock Planning Board neither was concerned that neighbors might be without firefighting capacity as a result of demand at Woodstock Commons. It hardly takes a hard look to infer that RUPCO has announced that neighbors will suffer severely decreased water pressure, below the standard used in New York State
128. In addition to the alarming firefighting scenario, Woodstock Planning Board failed to perform, and perhaps to even wonder about whether day-to-day water pressure would fall below the normal accepted window of 60-80 PSI, or below the minimum acceptable 35 PSI, according to the Ten States Standards.
129. Once again, Woodstock Planning Board failed to take a hard look at the negative effects of potential decreased water pressure as a result of tripling demand in the neighborhood.
130. More troubling than these omissions is the inclusion of very detailed water demand and pressure simulations of a Woodstock
131. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since Woodstock Planning Board did not take a hard look at the effect of a tripling of water demand on day-to-day water pressure in neighboring properties.
AS AND FOR A FIFTEENTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
132. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 131 as if fully set forth.
133. Woodstock Planning Board vaguely gauges proposed Woodstock Commons residents’ drain on services, (Exhibit 1, p. 86) beginning with the arbitrary and capricious assumption that there is currently residual service capacity.
134. The Findings Statement continues: “there is no significant requirement for expansion experienced in these Community Facilities and Services and no significant adverse impact with respect to these services has been identified.”
135. RUPCO’s rationale, in the EIS, for not requiring any expansion of services is based on the assumption that residents of the proposed Woodstock Commons will volunteer to fill whatever need there is.
136. This assumption is no excuse for not taking a hard look at town services and facilities, rather than relying on volunteer services to keep service levels for other town residents at or near current levels.
137. There are vacancies on volunteer boards and have been for a number of months, with no volunteers to fill them. The library, a perfect example, has an enormous budget, and several full time salaries, which are a very large percentage of the town budget. The library is normally a place where people who do not have computers sit to use the internet.
138. An affordable housing project will, based on its residents’ limited income, bring additional library users to the town, and this already expensive resource with not enough volunteers, will become even more expensive, since the users are counted and based on them, budgets are floated and voted upon.
139. The reason that the future population of Woodstock Commons has not indicated a need for additional services as a result of adverse impacts on existing services is because no adverse impacts ever were brought into any discussion. The applicant simply stated, under any scenario, that the residents of Woodstock Commons would volunteer wherever their presence would present a drain on services. This assumption is based on nothing but wishful thinking.
140. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since Woodstock Planning Board relied on an assumption of volunteer service to fill the gap where currently salaried jobs will not be adequate to render service to the town’s additional residents.
AS AND FOR A SIXTEENTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
141. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 140 as if fully set forth.
142. Woodstock Planning Board contends, “RUPCO has engaged in continuing discussion with the owner of the planned Woodstock Commons premises, EVK Realty, LLC, regarding the reservation of a pedestrian easement by the latter across a portion of the Bradley Meadows shopping plaza.
143. This makes no sense. The easement should be negotiated between RUPCO (the applicant) and the owner of Bradley Meadows shopping Plaza, which is Mountain Meadow Realty, LLC, not EVK Realty, LLC.
144. The Findings Statement already stated that such negotiations were ongoing. EVK Realty is identified as the owner of the planned Woodstock Commons premises. If and when the project moves forward, a Limited Partnership will be the owner of the planned Woodstock Commons premises. It makes no sense to be in negotiations with the seller of the land. The seller of the land will not own any land over which to grant an easement. The seller of the land will have sold the land, and will possess money, not land. Moreover, the seller of the land does not own the adjacent land over which this easement is said to be negotiated.
145. If it is here suggested that EVK Realty, LLC owns the Bradley Meadows Shopping Plaza in addition to the acreage to be used for Woodstock Commons
146. It is entirely fruitless for RUPCO to be in “continuing discussion” about an easement with EVK Realty, LLC, since neither RUPCO nor EVK Realty, LLC appears to own the property over which the desired pedestrian easement will exist.
147. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since Woodstock Planning Board does not seem to be aware of which parties own which land, and that awareness, at the very least, should be a litmus test for taking a hard look at something as simple as identifying the parties with whom to negotiate an easement.
AS AND FOR A SEVENTEENTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
148. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 147 as if fully set forth.
149. Woodstock Planning Board reports, (Exhibit 1, p. 95) that Woodstock Commons, as a result of New York Real Property Tax Law 581-A, will increase taxes, however the magnitude of this increase was derived in a most arbitrary and capricious way.
150. Woodstock Planning Board, parroting RUPCO, calls the reported tax increase the “worst case scenario” with regard to tax increases, however this claim is based on nothing more than a projected operating income, since projected operating income is the basis of the taxable value of the property under RPTL 581-A.
151. The “worst-case scenario,” however, occurs when net operating income is zero, and therefore taxes levied from the housing project also are zero. RUPCO obfuscated the calculations deriving the expected tax levy from Woodstock Commons, and Woodstock Planning Board accepted the misnamed “worst-case scenario.”
152. The 2010 decision in EPO-Stovroff Apartments, L.P., v. Town of Cheektowaga upheld the reduction in taxable property value of an affordable housing project from the town tax assessor’s $220,000 to a mere $6,000.
153. This 2010 decision shows that RUPCO’s and therefore Woodstock
154. In addition to this case law, I sent a letter to each member of Woodstock Planning Board on March 1, 2010, (Exhibit 10) explaining why RUPCO’s worst case scenario was not the worst case at all, and in fact was most likely inflating the expected tax revenue generated from Woodstock Commons. The contents of this letter were also submitted, by me, (Exhibit 3) during the comment period following Woodstock Planning Board’s acceptance of the Final Environmental Impact Statement.
155. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since Woodstock Planning Board failed to take a hard look at the potential tax increase expected by Woodstock Commons, despite being shown calculations in letters addressed to each of them, and choosing arbitrarily and capriciously to consider only opinions supporting the figures in RUPCO’s application.
AS AND FOR AN EIGHTEENTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
156. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 155 as if fully set forth.
157. Woodstock Planning Board accepted a biased analysis of the effect of surrounding property value due to the future presence of Woodstock Commons.
158. The properties compared to Woodstock Commons are the Birches at Saugerties in the Town of Saugerties ; Chamber Court Ulster ; Birchwood Village in the City of Kingston ; and Elsie’s Meadow in the Town of Shawangunk
159. Three of four of these “comparable” affordable housing properties are senior-only housing, and the fourth is mixed family and senior affordable housing. It is well known that seniors of any income bracket do not commit crimes or other disturbances such as loud noise with the same frequency or intensity as younger populations do. This appraisal, performed for RUPCO, is clearly biased.
160. In addition, I personally have had my house, which is one street over from Playhouse Lane
161. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since Woodstock Planning Board failed to take a hard look at the potential decrease in value of homes surrounding the proposed housing development, and a hard look is necessary in order to assess whether the reasonably supported expected decrease in property value is the best policy for the town and for property owners.
AS AND FOR A NINETEENTH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
162. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 161 as if fully set forth.
163. Woodstock Planning Board failed to analyze reasonable alternatives to the proposed action. Woodstock Planning Board analyzed alternatives including the “no build” alternative, and several versions of Woodstock Commons, however SEQRA Section 617.9(b)(5)(v), requires “a description and evaluation of the range of reasonable alternatives to the action that are feasible, considering the objectives and capabilities of the project sponsor. “ Included in these alternatives are alternative: sites, design, timing, and types of action. None of these alternatives, except for the “no action” alternative, were analyzed, except for some variations of the action that Woodstock Planning Board has adopted.
164. RUPCO’s general goal as a New York charitable organization is to provide affordable housing to residents of Ulster County
165. Woodstock
166. The alternative consisting of existing housing being refurbished by the town surely could have been an opportunity for applicant RUPCO to manage affordable housing in Woodstock
167. The very least that should have been performed within the SEQRA process, under the hard look test, was a cursory examination on the part of Woodstock Planning Board to include this recommended refurbished housing path/alternative to the proposed action, since it could well have assigned to the applicant a central role in such an alternative.
168. According to SEQRA Section 617.9, Woodstock Planning Board must “evaluate all reasonable alternatives,” and clearly, this was not done.
169. Woodstock Planning Board’s decision to support the applicant’s action without also analyzing even the alternative that was suggested by the Woodstock Affordable Housing Committee, the very body that justified the applicant to proceed in the first place with the Woodstock Commons action, was arbitrary and capricious.
170. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since Woodstock Planning Board failed to take a hard look at, besides the “no action” alternative in the proposed location, all, most, or even some reasonably different alternatives to the proposed action.
AS AND FOR A TWENTIETH CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
171. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 170 as if fully set forth.
172. Woodstock Planning Board, in a general statement, has shown its proclivity to shy away from contentious topics when it claims, (Exhibit 1, p. 117) that “there has been public controversy, both for and against the Woodstock Commons project, since its inception and that such controversy will persist following adoption of this Findings Statement. This type of controversy is ordinary, customary and to be expected in the Town of Woodstock
173. It is meaningless to state that controversy is “for and against” a project. The definition of controversy is the presence of both “for” AND “against” positions, and that these positions are represented vocally and in conflict with one another.
174. It is disturbing that Woodstock Planning Board has not been influenced one way or another as a result of such controversy. Controversy, by its very nature, isolates the kernel of the issue, helping to clarify and distill what is superfluous or agreed upon, from what is debatable. To fail to be influenced by controversy, in any form, is to ignore complaints, evidence produced by collective society, discussion, and the public will on both sides. To fail to be influenced by controversy is shameful. It is also an admission of a failure to place the general public sentiment in the mix of information relevant to investigating and analyzing the applicant’s proposed action.
175. More than any other statement, the one quoted above demonstrates the intellectual vacuum in which, and the investigatory blinkers with which Woodstock Planning Board has armed itself against public sentiment, and indicates a general attitude of arbitrariness and capriciousness towards issues about which there is public disagreement.
176. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since Woodstock Planning Board failed to listen for, hear, and consider expression of ideas that are controversial in public.
AS AND FOR A TWENTY-FIRST CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
177. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 176 as if fully set forth.
178. Woodstock Planning Board (Exhibit 1, p. 118) “finds that none of the comments result in the identification of areas of environmental concern which would require substantive project modification or a change of circumstance requiring the Lead Agency to substantively modify the Decision to certify, adopt and issue the Woodstock Commons Findings Statement.”
179. Woodstock Planning Board then cites a list of twenty-five public comment areas, which it defines as the areas that were addressed. Missing from this list is SAFETY.
180. I personally submitted in writing, spoke about at public hearings, wrote about by invitation in the town’s newspaper, wrote letters to the editor about, and discussed with Woodstock Planning Board members, concerns for safety at several intersections near the project site. The town newspaper also printed a front-page story about the intersection that will see a great increase in traffic as a result of Woodstock Commons being built, and the focus of this article was safety (Exhibit 13).
181. For Woodstock Planning Board to omit the topic of safety from the issue categories that were considered is tantamount to an admission that safety was not thoroughly analyzed, as I have shown previously in this petition.
182. Despite the production of traffic analyses, car counts, road measurements, and accident accounts, all part of the submitted record, Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since Woodstock Planning Board, by admission through omission, failed to analyze the public’s comments and challenges on the topic of safety.
183. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since Woodstock Planning Board, by admission through omission, failed to analyze the public’s comments on the topic of safety.
AS AND FOR A TWENTY-SECOND CAUSE OF ACTION AGAINST
THE TOWN OF WOODSTOCK
184. Petitioner/Plaintiff repeats and realleges paragraphs 1 through 183 as if fully set forth.
185. Woodstock Planning Board is comprised of seven volunteer members, one of whom recused himself from considering this particular action. Of the remaining six members, three have conflicts of interest with RUPCO, the project applicant.
186. The first conflict is Laurie Ylvisaker, a realtor who is a member of the Ulster County Board of Realtors, which is one of RUPCO’s official partners, and this is stated on RUPCO’s website. Ylvisaker, in a letter to the editor of the local newspaper, in 2009, expressed her willingness to and enthusiasm in selling homes to first-time homebuyers with RUPCO’s assistance. (Exhibit 14).
187. The two other members of Woodstock Planning Board with conflicts of interest are Paul Shultis, Jr, who is chair of Woodstock Planning Board, and David Corbett. Both of these members served on the Woodstock Affordable Housing Committee during the years spanning 2002-2004, and this is the committee that invited RUPCO to Woodstock
188. There is clearly a bias in favor of RUPCO, and an impossibility of these two Woodstock Planning Board members to remain impartial, given their previous committee’s positive slant and invitation.
189. Woodstock Planning Board’s acceptance of the Findings Statement must be set aside since three of six Woodstock Planning Board members have conflicts of interest with RUPCO. These three members’ votes should be annulled, which leaves only three members, and these votes, even if all in favor of adopting the Findings Statement, do not comprise a quorum.
190. No previous application has been made for the requested relief. WHEREFORE, petitioner respectfully requests that judgment be entered pursuant to Article 78 of the Civil Practice Law and Rules:
191. VACATING and setting aside Respondent’s determination of July 1, 2010, accepting the Woodstock Commons Findings Statement;
192. GRANTING such other and further relief as the Court may deem just and proper.
ROBIN SEGAL
Petitioner, pro se
Dated: July 28, 2010
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