SUPREME COURT STATE OF NEW YORK
COUNTY OF ROCKLAND
____________________________________________________________X
Dr. Sonya Shapiro and Milton B. Shapiro, PETITION
PURSUANT TO
Petitioners, CPLR
ARTICLE 78
Against
Index No:
Town of Ramapo and its Town Board
Respondents,
and
Town of Clarkstown, Assigned Judge:
Scenic Development, LLC,
Nominal Respondents
____________________________________________________________X
Petitioners, Dr, Sonya Shapiro and Milton B. Shapiro, both reside at 34 Scenic Drive, Suffern, NY 10901 (Petitioners) by their attorney, Susan H. Shapiro, with offices located at 21 Perlman Drive, Spring Valley, NY, in their Verified Petition herein, respectfully alleges as follows:
1. Petitioners brings this Article 78 proceeding action against the Town of Ramapo and the Town Board of the Town of Ramapo (collectively, the “Town” or “Ramapo”) petition this Court to review the four determinations of the respondent Town Board in amending the Town’s Comprehensive Plan and the Town Zoning Law and Map on Janaury25, 2010 relating to the property owned by the Applicant, Scenic
Development, LLC; and then to revoke to annul and vacate the four determinations described in paragraph 8 below and for the reasons given herein. These determinations, known as Town Resolutions Nos. 2010-98, 2010-99 and 2010-100 (1) adopted a Findings Statement pursuant to SEQR for the proposed zone change; (2) amended the Town Comprehensive Plan to propose a zone change for the subject properties from R-40 to MR-8; (3) granted the petition for zone change for the subject properties from R-40 to MR-8, and (4) adopted Local Law No. 1 -2010 of the Town of Ramapo amending the Zoning Map of the Town with respect to the subject properties.
PARTIES
2. Petitioners both only reside at 34 Scenic Drive, Suffern, NY 10901 on lots zoned R-50 (50,000 SF Lots) directly across the street from the subject property for the past 40 years, and are directly affected by the zone change and amendment to the Comprehensive Plan referred to herein.
3. Petitioners have standing and capacity to bring this proceeding/action was they live 500 feet from the subject property and are residents of the unincorporated Town of Ramapo and the County of Rockland. Their neighboring lots are either R-50 or R-40.
4. Respondent TOWN OF RAMAPO is a municipal entity organized and existing under the laws of the State of New York as a political subdivision thereof with principal offices at 237 Route 59, Suffern, New York 10901.
5. Respondent TOWN BOARD OF THE TOWN OF RAMAPO is the legislative and administrative body of the Town of Ramapo and derives its authority pursuant to the Town Law of the Sate of New York. Its offices are at Town Hall, 237 Route 59, Suffern, New York 10901. The Town Board was the Lead Agency under SEQR for the environmental review of the zone change granted to SCENIC DEVELOPMENT, LLC.
6. Omit
7. Nominal Respondent TOWN OF CLARKSTOWN is a municipal entity organized and existing under the laws of the State of New York as a political subdivision thereof with principal offices at 10 Maple Avenue, New City, NY 10956.
8. Upon information and belief, Nominal Respondent SCENIC DEVELOPMENT, LLC is a domestic limited liability corporation having offices at 404 East Route 59 Nanuet, New York 10954 and is the owner of several parcels of real property situated at the south side of Route 202 and the west side of Route 306 in the unincorporated Town of Ramapo, designated on the Tax Map as Sections 32.11-1-2, 32.11-1-3, 32.11-1-4, 32.11-1-12, 32.11-1-13, 32.11-1-14, 32.11-1-15, 32.11-1-16 and 32.14-2-3. The property is situated at the northeastern portion of the Town of Ramapo and is commonly known as Patrick Farm. Scenic Development, LLC is hereinafter referred to as “Applicant”.
FACTS
History of Property
9. On or about August 7, 1996 The Town of Clarkstown adopted Resolutions 685-1996, 686A-1996 and 686B-1996 (Exhibit 1A, Resolutions 685-1996, 686A-1996). “The Town Board of the Town of Clarkstown determines and states that it is the intention of said Town Board to adopt a resolution authorizing the acquisition of a parcel of land located in the Town of Ramapo and the construction of a Town golf course facility thereon (such acquisition of land and such construction of a Town golf course facility being collectively referred to as the “Project”. The estimated total cost of the Project is expected to be $10,000,000 and the plan of financing is expected to include the issuance of serial bonds of the Town to finance the Project” (Resolution 685-1996).
10. A condition of the Contract of Sale to Clarkstown dated September 3, 1996 is a preliminary routing plan demonstrating development of the property as golf course, as specified in paragraph 20. (Exhibit 1B, Contract of Sale to Town of Clarkstown).
11. In an open, public and publicized manner from 1996 to 2001, the Town of Clarkstown processed a site plan before the Town of Ramapo Planning Board to obtain necessary approvals for the proposed municipal public golf course (Exhibit 1C Reprint Journal News September, 6 1996 p 1.)
12. Numerous resolutions where passed by the Town Board of Clarkstown to obtain funding and accept donations, (Resolutions 1146-1996, 764-1997) as well as to retain and pay significant sums to surveyors, engineers, planners in the development of the golf course (Resolutions 1087-1996, 30-1997, 31-1997), and to purchase additional property adjacent to Patrick Farm for the Town of Clarkstown Golf Course (Resolutions 897-1997, 898-1997) (Exhibit 1D, Resolutions1146-1996, 764-1997, 1087-1996, 30-1997, 31-1997, 897-1997, 898-1997 ).
13. On or about June 17, 2001 by Resolution 549-2001 the Town of Clarkstown authorized the sale of Patrick Farm to Scenic Properties, LLC, a private developer for $7,050,000.00 (Exhibit 1E, 549-2001 ).
14. Without obtaining the required State Legislative authorization for alienation of the Patrick Farm golf course property, enlarged by the additional acquisitions, a contract of sale of the “Golf course property” to Scenic Properties, Inc. was dated July 2, 2001 (Exhibit 1F, Contract of Sale, 1). The deed was recorded on November 16, 2001.
15. In January 2004 the Town of Ramapo adopted its Comprehensive Plan after a number of years study and hold extensive public hearings which reviewed the housing needs of the Town. In the Comprehensive Plan the Patrick Farm was first zoned R-80 and R-50, but subsequently changed to R-40. It is situated in a low density neighborhood and located on an environmentally sensitive site.
16. On or about May 5, 2008 Respondent/Defendant Scenic Development, LLC (The Applicant) submitted an application to the Town of Ramapo permit the Patrick Farm into 497 housing units instead of the contemplate between 110- 140 single family homes. The Applicant’s petition consists of 314 townhouse, 72 condominium units and 24 rental apartments, and 87 single family homes. (DEIS -Appendix C )
17. On or about June 26, 2008 the Town Board adopted a final scoping document pursuant to SEQR for the zone change application. This document did not refer to or include scoping for an amendment to the Comprehensive Plan.
18. On or about April 15, 2009 a Draft Environmental Statement (DEIS) for the proposed zone change was prepared. I t was accepted on April 29, 2009 by the Town Board. The DEIS did not refer to, contemplate, study, nor include an amendment to the Comprehensive Plan.
19. Public hearings on the DEIS were held on June 4, 2009 and June 8, 2009 and written comments were accept until July 23, 2009.
20. On or about June 4, 2009 the Rockland County Planning Department sent a letter stating that the amendment to the Comprehensive Plan required a separate environmental review pursuant to SEQR, the letter is included in the Final Environmental Impact Statement (FEIS letter Rockland County Planning Department #15). No SERQA review was conducted on the amendment to the Comprehensive Plan.
21. By resolution No 2010-56 the Town Board accepted as complete the FEIS for the zone change. The FEIS did not include the amendment to the Comprehensive Plan.
22. On or about July 24, 2009 the Rockland County Planning Department issued its General Municipal Law Review (GML) on the amendments to the Ramapo Comprehensive Plan and Zoning Map, which raised multiple objections to the proposed amendment to the Comprehensive Plan. (Exhibit 2A, County of Rockland Department of Planning GML Review to Amendments to Ramapo’s Comprehensive Plan and Zoning Map (R-2040C)
23. On or about January 25, 2010 by Resolution 2010-98 the Town Board adopted the written Findings Statement with respect to the proposed zone change (Exhibit 2B, Resolution 2010-98, Final Finding Statement).
24. On the same date and time the Town Board adopted Resolution 2010-99 amending the Comprehensive Plan to change 61 acres of the Patrick Farm from R-40 to MR-8 and overrode the General Municipal Law review dated July 24, 2009. (Exhibit 2C, Resolution 2010-99, amendment to Comprehensive Plan and GML Review July 24, 2009).
25. Also on the same date and time the Town Board adopted Resolution No. 2010-100 granting the petition submitted by the Applicant amending the Town Zoning Map subject to certain conditions and enacting said amendment as Local Law 1-201-. (Exhibit 2D, Resolution 2010-100) and Local Law 1-2010, Zone Change).
26. On or about March 26, 2010 Applicant submitted applications to the Town of Ramapo Planning Board for 1) sketch plat for proposed 89 lot subdivision; 2) site plan for a proposed 24 unit rental housing development; and 3) site plan for a proposed 314 unit townhouse development. A Ramapo Planning Board meeting to discuss these application has been scheduled for April 13, 2010 and, upon information and belief, has been adjourned to an indefinite date.
27. No previous application has been made to this or any Court for relief request herein.
A. EACH OF THE TOWN OF RAMAPO’S RESOLUTIONS SHOULD BE VACATED FOR VIOLATION OF THE PUBLIC TRUST DOCTRINE.
28. The Petitioners repeats and re-alleges Paragraphs 9 through 13 and Paragraphs 22 through 25 as if fully set forth herein.
29. The Public Trust Doctrine, aka Parkland Alienation, requires that approval first be obtained from the New York State Legislature for any discontinuance or conveyance of publicly held lands dedicated to the Public Trust. A municipality, without specific legislative sanction, may not permit property acquired or held by it for public use to be wholly or partly diverted to a possession or use exclusively private. (Lake George S.B. Co. v. Blais, 30 N.Y.2d 48, People ex rel. Swan v. Doxsee, 136 App. Div. 400, 403, affd. 198 N. Y. 605; Meriwether v. Garrett, 102 U.S. 472, 513; 3 Op. St. Comp., 1947, p. 178). The courts have consistently held when a Town Board passes resolutions to purchase and develop lands for public recreational uses, such land is dedicated by implication to the Public Trust.
30. The premises at issue were acquired or held by the Town of Clarkstown for public recreational use. An examination of the language contained in the resolutions and documentation for conveying the Patrick Farm lands clearly demonstrate that the Town of Clarkstown acquired Patrick Farm for public use as a municipal golf course. In Town Board minutes from 1996 – 2001 the property was consistently referred, to as the Town golf course or municipal golf course. (Exhibit 3, Ramapo and Clarkstown Town Board minutes)
31. The Town of Clarkstown never applied to the New York State Legislature to approved alienation of the Patrick Farm. The New York State Legislature has never approved alienation of the Patrick Farm from the Public Trust. Therefore, use of the Patrick Farm approval and development of 497 private homes violates the long held Public Trust Doctrine.
B. THE TOWN BOARD’S RESOLUTIONS SHOULD BE VACATED AND ANNULLED FOR VIOLATION OF TOWN OF RAMAPO LOCAL LAW NO. 8-2004 (THE AQUIFER AND WELL FIELD PROTECTION ZONE LAW) AND FOR ARBITRARILY AND CAPRICIOUSLY ENDANGERING A NYS PROTECTED SINGLE SOURCE, PRIMARY WATER SUPPLY AQUIFIER and for VIOLATING SEQR BY FAILING TO TAKE THE REQUISITE “HARD LOOK” AND PROVIDING A “REASONED ELABORATION” OF FINDINGS OF THE IMPACTS OF THE CLEAR-CUTTING, STRIPPING, FLATTENING AND/OR PAVING OF THE MAJORITY OF THIS ENVIRONMENTALLY SENSITIVE SITE.
32. On the Applicant’s SEQR Full Environmental Assessment Form, the applicant confirmed that the project is over a primary principle or sole source aquifer (Exhibit 4, Appendix A SEQRA Documentation).
33. The purpose of the Town of Ramapo’s Local Law No.8-2004 known as the Aquifer and Well Field Protection Zone Law, is “to prevent the introduction to the watershed of materials that pose a threat to the watershed and hence to public health and safety.” In Local Law No 8-2004 the standards established are to prevent §7 b) degrad(ation of ) the quality of groundwater through the introduction of … storm water runoff… petroleum products, dissolved metals or other toxic substances; d) Increase the long term risk of groundwater contamination of relatively small quantities of material which over a period of time may accumulate in groundwater; e)increase the risk of groundwater contamination through the removal of soils, sands, stone or gravel which provide a protective mantel for groundwater which is part of the geologic deposits comprising the Town’s aquifer. As indicated on the Aquifer and Well Field Protection Zone map attached to the Local Law a large portion of the Patrick Farm overlays the aquifer (Exhibit 5, Aquifer and Well Field Protection Zone map).