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EF2018-00002756
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/06/2018
Petitioners
v.
Respondent
INTRODUCTION
1. This proceeding is brought by the Town of Henderson Town Board and Claudia
and the Montague Family Trust pursuant to Article 78 of the Civil Practice Law
and Rules to annul and invalidate ab initio Town of Hounsfield Local Law #2 of
2018 ("Local Law #2") purporting to amend the Town of Hounsfield Zoning Law
facilities"
to include "wind power generating in the definition of "essential
services"
a) for the failure of the Town of Hounsfield Town Board ("Hounsfield
Town Board") to comply with the State Environmental Quality Review Act
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Board's failure to comply with General Municipal Law Section 239-m; c) because
Local Law #2 is not consistent with the 2014 Town of Hounsfield Comprehensive
Plan as required by Town Law Section 263; and d) because the Hounsfield Town
Board failed to provide at least 10 days prior written notice to the Town of
Henderson Town Clerk concerning the public hearing to be held on Local Law #2
PETITIONERS
a principal place of business at 12105 Town Barn Road, Henderson, New York
13560.
borders the Town of Henderson, and wind power generating facilities in the Town
Henderson, including but not limited to in visual, noise, lighting and avian
impacts, and could affect the community character as well as patterns of growth
Henderson Town Clerk was entitled by Town Law Section 264(2)(b) to receive at
least 10 days prior written notice of the public hearing on Local Law #2 but
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adoption of Local Law #2 in a manner different in kind and degree than the public
4. Petitioner Claudia Maurer resides at 8539 County Route 178, Henderson, New
York 13650, and she is Trustee of the Florence A.M. Maurer Irrevocable Trust
5. The Trusts are the record owners in fee of Stony Island, identified as Town of
6. Claudia Maurer, Trustee, is identified in the records of the Jefferson County Clerk
and 96.00-1-4, and she spends considerable time on and around Stony Island
where she appreciates the unobstructed view of Lake Ontario, the dark night sky,
the peace and quiet of Stony Island and the abundant birdlife in the Town of
Hounsfield including but not limited to eagles, gulls and terns. Claudia Maurer,
Trustee, and the Trusts are therefore impacted by the adoption of Local Law #2 in
a manner different in kind and degree than the public at large, and therefore
RESPONDENT
7. Respondent Town of Hounsfield Town Board is the duly elected governing body
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BACKGROUND
8. The minutes of the Hounsfield Town Board's October 10, 2018 meeting indicate
"Supervisor Scee introduced Local Law #2 of 2018, to amend the Zoning Law to
7:05pm"
November 7, 2018 at (see October 10, 2018 Hounsfield Town Board
ny.org/meeting%20minutes/TB%20Mte.%2010.10.18.odf).
9. The minutes of the Hounsfield Town Board's November 7, 2018 meeting indicate:
definition for essential services. There were no comments from the public
and the hearing was closed. Attorney Renzi read a short SEQR form and
the Board agreed with the content. (see November 7, 2018 Hounsfield
ny.org/meeting%20minutes/TB%20Mte.%2011.7.18.pdf).
10. The minutes of the Hounsfield Town Board's November 7, 2018 meeting further
indicate:
definition of Essential Services in the Zoning Law. All voted aye and the
11. Upon information and belief, no other reference to Local Law #2 appears
12. The Hounsfield Town Board was required but, upon information and belief, failed
to provide at least 10 days prior written notice of the public hearing on proposed
Local Law #2 to the Town of Henderson Town Clerk as required by Town Law
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Section 264(2)(b).
13. Modern land-based wind power generating facilities have a blade tip height of
approximately 600 feet or more, rotate with a blade tip speed of almost 200 mph,
can be seen and heard for miles away, require flashing strobe lights at night to
prevent airplanes from colliding with them, and can cause substantial avian and
bat mortality, and upon information and belief, prior to adopting Local Law #2
the Hounsfield Town Board failed to characterize the adoption of Local Law #2
look"
the adoption of Local Law #2; failed to take a "hard at the potential
environmental consequences that could result from the adoption of Local Law #2;
14. Wind power generating facilities almost 600 feet tall visible from miles around
associated with industrial wind power generating facilities can have county-wide
implications, and upon information and belief, prior to adopting Local Law #2 the
Hounsfield Town Board failed to refer proposed Local Law #2 to the Jefferson
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15. Upon information and belief and according to the 2014 Town of Hounsfield
comprehensive plan.
16. Local Law #2 was filed with the New York State Department of State on
17. Petitioners repeat and reallege each and every allegation set forth in paragraphs 1
through 16 hereinabove.
18. "action"
The adoption of Local Law #2 constituted an as that term is defined at 6
19. The adoption of Local Law #2 constituted a "Type I action", as that term is
617.4(b)(2).
20. The Hounsfield Town Board is an "agency" as that term is defined at 6 NYCRR
Section 617.2(c).
21. The Hounsfield Town Board was required but failed to characterize the adoption
of Local Law #2 as a Type 1 action to 6
according NYCRR Section
6 617.4(b)(2)
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because it changes the allowable uses within zoning districts affecting more than
Hounsfield Town Board failed to recognize that the adoption of Local Law #2
was presumed to have a significant adverse impact on the environment and would
Statement.
22. The Hounsfield Town Board received a proposed draft of Local Law #2 and a
Town Board was required and failed to prepare a Full Environmental Assessment
23. The Hounsfield Town Board was required but failed to prepare parts 2 or 3 of the
24. The Hounsfield Town Board was required but failed to identify the relevant areas
facilities including but not limited to visual, noise, lighting, and avian impacts,
look"
take a "hard at each and every such environmental concern; and provide a
Test"
significance as required by the "H.O.M.E.S established by H.O.M.E.S. v.
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(4th
New York State Urban Dev. Corp., 69 A.D.2d 222 Dept. 1979), and as
25. Upon information and belief, the Hounsfield Town Board was required but failed
to publish notice of any Negative Declaration for adoption of Local Law #2, a
26. The Hounsfield Town Board's failure to comply with SEQRA's procedural or
law, was in excess of jurisdiction, was made in violation of lawful procedure, was
27. Petitioners repeat and reallege each and every allegation set forth in paragraphs 1
through 26 hereinabove.
28. Local Law #2 applies throughout the Town of Hounsfield and therefore affects
real property within 500 feet of the boundary between the Towns of Hounsfield
and Henderson, and the Hounsfield Town Board was required but failed to refer
Section 239-m.
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29. The Hounsfield Town Board's failure to comply with General Municipal Law
discretion.
30. Petitioners repeat and reallege each and every allegation set forth in paragraphs 1
through 29 hereinabove.
31. Town Law Section 263 requires that zoning regulations and amendments be
32. The Hounsfield Town Board previously adopted the 2014 Town of Hounsfield
wind power generating facilities in the Town of Hounsfield, and does not
services".
33. The adoption of Local Law #2 which is not consistent with the 2014 Town of
procedure, was affected by an error of law, was arbitrary and capricious, and/or
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34. Petitioners repeat and reallege each and every allegation set forth in paragraphs 1
through 33 hereinabove.
35. Local Law #2 purported to amend the Town of Hounsfield Zoning Law.
36. Town Law Section 264(2)(b) requires that written notice of a proposed zoning
37. Upon information, the Hounsfield Town Board did not provide any notice to the
Town of Henderson Town Clerk concerning the public hearing on proposed Local
Law #2.
38. The Hounsfield Town Board's failure to provide notice of the public hearing on
was affected by an error of law, was arbitrary and capricious, and/or was an abuse
of discretion
WHEREFORE, Petitioners respectfully request that this Court issue a judgment granting
this verified petition, and awarding judgment to Petitioners and against respondent Town
2. Granting such other and further relief as the Court may deem just, equitable and
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proper, including but not limited to the costs and disbursements of this proceeding.
By:
Douglas H. Zamelis‰h.
11
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ATTORNEY VERIFICATION
) ss.:
COUNTY OF OTSEGO )
Douglas H. Zamelis, Esq., being duly sworn, deposes and says that he is an attorney in
good standing admitted to practice in the Courts of New York State and that he is attorney of
record for the Petitioners in the within proceeding; that deponent has read the foregoing verified
petition and knows the contents thereof; and that the same is true to deponent's own knowledge,
except as to the matters therein stated to be alleged on information and belief, and that as to those
matters deponent believes them to be true. Deponent further says that the reason this verification
is made by deponent and not by the petitioner is that the petitioner does not reside in the County
The grounds of deponent's belief as to all matters not stated upon deponent's knowledge
are as follows: review of public records and recordings, and discussions with petitioner.
UGLAS. H. ZAMELILESQ.
Notary Public
SHARON L
EDMUNDS
Notary Public, State of New
York
Registration No.
01ED6007097
Qualified in Herkimer
County 12
Commission Expires
May 18, 20d
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