cpv art78 verified petition

8/17/2019 Cpv Art78 Verified Petition

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ORANGE

--------------------------------------------------------------------x \ f t T I C ~ I G 8

JEANNE AND JOSEPH VISERTA, ADRIANA

GROENESTYN,

Petitioners,

vs.

TOWN OF WA WA YANDA PLANNING BOARD

and CPV VALLEY, LLC,

Respondents.

FOR

AN

ORDER AND JUDGMENT PURSUANT

TO ARTICLE 78 OF THE CPLR

--------------------------------------------------------------------X

I

INTRODU TION

PftOCIGIGDING

INDEX NO.

VIGftiFIIGD PETITION

This is an action to vacate an approval of an Amended Site Plan granted by

respondent Town of Wawayanda Planning Board [hereinafter the Board ] to

respondent CPV Valley, LLC [hereinafter CPV ] on April22 2015 for the

construction of a major electrical generating facility [ the facility ] in the own

of

Wawayanda.

As the Board failed to require respondent CPV, the applicant, to submit a

necessary Supplemental Environmental Impact Statement [hereinafter SEIS ], as

mandated by 6 NYCRR 117.9(d)(7) in light of changes in circumstance and newly

discovered information, as set forth more fully below, this Honorable Comi should

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vacate that approval and remand the application to the Board for the conduct o a

SEIS.

II

P RTIES

1.

Petitioners Jeanne and Joseph Viserta reside at 3254 Route 6 Middletown, New

York 10940, SBL 12-1-1, within

118

mile from the site

o

the proposed activity.

Petitioners Viserta are amongst the closest residents to the proposed facility.

2. Petitioner Adriana Groenestyn resides at 29 Kirbytown Road, Slate Hill,

New

York, within 1/8 mile from the proposed activity. Petitioner Groenestyn

is

amongst the closest residents to the proposed facility.

3.

The value o petitioners properties will be considerably compromised and

diminished by the construction o the respondent CPV s generating facility and

petitioners and their families will be subjected to substantial environmental effects,

including air, water and noise pollution, to an extent far greater than others due to

their proximity to the proposed facility.

4.

Respondent Town ofWawayanda Planning Board is a Department

o

the Town

o

Wawayanda, a municipal corporation organized to conduct business in the State

o New York, and may sue and be sued for its actions.

It

is located in the County

o Orange.


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5

Respondent CPV Valley, LLC [hereinafter CPV ] is the applicant and sponsor

of the facility, though it does not currently own the separate tax parcels upon which

it has been granted site plan approval by respondent Board; it conducts business

in

the State

of ew

York, County

of

Orange, may sue and be sued herein for

its

actions and, as the sponsor/applicant, is a necessary party to this proceeding.

III. JURISDICTION

6

As the Board's most recent approval

of

the amended site plan without the

conduct of a SEIS is arbitrary, capricious and contrmy to law, this Honorable Court

has jurisdiction over this matter pursuant to Article

78 of

the CPLR.

7

As the Board approved the amended site plan on April 22, 2015, petitioners

timely bring this special proceeding.

IV. ST TEMENT OF F CTS

8. In detennining whether a proposed action may have a significant adverse effect

on the environment, the

ew

York State Environmental Quality Review Act

[hereinafter SEQRA ] sets fmth a number

of

non-exclusive criteria, see, section

617.7 (c)(1), including (iv) the creation

of

a material conflict with a community's

current plans

or

goals as officially approved or adopted ; (viii) the creation of a

hazard to human health and (x) the creation of a material demand for other

actions that would result in one

of

the above consequences.

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be sent to heat recovery steam generators [HRSGs] to produce steam to drive a

steam turbine generator. The HRSGs will include a natural gas-fired duct

burner. See, Exhibit

2

page 4.

15. However, respondent CPV did not disclose the integrated nature o this project

to the Board and its Final Enviromnental Impact Statement [hereinafter FEIS )

never took a hard look at either the cumulative effects o the projects, inclusive

o the pipeline connecting the two, or even publicly acknowledged the inter

relationship between the projects.

16. In May 2012, the Board issued an 81 page Statement ofFindings concerning

the instant project. See, Exhibit

2.

The Board later gave the applicant Site

Plan

approval premised upon this Statement o Findings.

17. This Statement o Findings followed the Board's issuance

o

a positive

declaration under SEQRA, the conduct

o

a scoping process to identifY issues to be

studied by the applicant, respondent CPV's preparation o a Draft Environmental

Impact Statement [hereinafter DEIS ), the Board's review o that draft, including

public hearings concerning the same held in 2010, respondent CPV's preparation

o a Final EIS and the Board's acceptance

o

the same.

18. In a section

o

the Statement o Findings entitled Purpose & Need, the Board

determined that [t]he project is consistent with several

o

the policy objectives set

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fmih in the 2009 New York State Energy Plan. The statement then cites th five

identified purposes, including 4. Reduce health and environmental risks

associated with the production

of

energy. Id. at page 12.

19. In late 2014, after the respondent Board issued the afore-cited Statement

of

Findings and granted respondent CPV site plan approval, CPV sought amended

site plan approval from the respondent Board.

20. Between the grant

of

site plan approval and the respondent Board's

consideration

of

the application for Amended Site Plan approval, there have been

material changes in circumstance and the discovery

of

new and highly relevant

information which required the respondent Board to direct respondent CPV

to

prepare a SEIS. See, 6 NYCRR 117.9(d)(7).

21. However, the respondent Board did not require CPV to complete such a SEIS

either su sponte or when the applicant sought Amended Site Plan approval despite

the fact that respondent Board came into possession

of

information about the

changes in circumstance and new evidence which warranted such a requirement.

22. Instead, during the process of considering the amended site plan in 2015 and

as reflected in its resolution dated April22, 2015 by which it granted approval to

respondent

CPV s

Amended Site Plan, the Board explicitly limited the nature

of

the review, repeatedly denying, at respondent's CPV's insistence, the relevance of

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newly discovered information

or

the changes in circumstances, which required a

SEIS.

23. Specifically, at the only evening

of

public hearing held on the Amended Site

Plan, the Chairwoman of he Board, Barbara Parsons, repeatedly told members

of

the public that their comments about newly discovered evidence and changes in

circumstances were out of bounds and irrelevant to the Board s deliberations. See,

Exhibit 3 for transcript

of

public hearings.

24. When members ofth public specifically demanded the conduct of an

S IS by

the applicant to review the newly discovery evidence and changed circumstances,

the Chairwoman declared this requirement off-the-table. Id. at pages 15, II 21-23,

16, II 11-17, 17, 11.21-22.

25. By their collective acts and omissions, the respondents failed to require/

perform a SEIS and took the position that conducting such a review was not

necessary. See, Exhibit 4 for Board resolution dated April 22, 2015 approving the

respondent s Amended Site Plan.

26. However, this conclusion was wrongful and a SEIS was required in this

instance for the following reasons, among others:

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A. THE NEW YORK STATE BAN ON HYDRO FRACKING

[i] fpermitted to operate, the proposed facility will use, as its primary fuel,

natural gas largely derived from hydro-fracking in the Commonwealth

of

Pennsylvania.

[ii] When the Board issued its Finding Statement in May 2012, New York

had no

declared public policy with regard to the process ofhydro-fracking, allowing the

Board to conclude that approval of this project was consistent with the energy

policy

ofthe

State

of

New York.

[iii] However, on December 16,2014, acting upon the advice ofthe New York

State Commissioners ofHealth and Environmental Conservation, and following an

extensive study by their respective departments, the Governor

of

the State of New

York, the Honorable Andrew Cuomo, declared the process ofhydro-fracking may

be sufficiently injurious to human health and safety so as to ban the process in the

State

ofNew

York, See, Exhibit 5 for A Public Health Review ofHigh Volume

Hydraulic Fracturing for Shale Gas Development, New York State Department

of

Health, December 17, 2014 Exhibit 6 Citing Health Risks, Cuomo Bans

Fracking in State, New York Times, December 17, 2014.

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[iv] In explaining the basis for this ban, the Acting Commissioner o Health, Dr.

Howard Z Zucker, stated, We cannot afford to make a mistake. The potential

risks are too great. In fact, they are not even known. Id.

[iv] The Department o Health review cited previous scientific studies which

concluded that hydro-fracking caused adverse affects upon respiratory health,

climate change and drini


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[vi] In respondent CPV's FEIS and in respondent Planning Board's initial

Statement o Findings, there

is

no discussion o the impact o the approval of this

facility on promoting and inducing hydro-fi·acking, see, Exhibit 2.

[vi] During the April 8, 2015 public hearing on the amended site plan, several

members o the public, including Shaw, Malick and Hurst, demanded that the

Board cause the applicant, respondent CPV, to study the environmental effects

o

hydro-fracking as the instant application induced and promoted that process, which

may be injurious to human health and create health hazard, thereby requiring

detailed review See, Exhibit 3 at pp. 14, II. 3-7, 22, II. 3-21, 47, II. 15-24.

[vii] In its response to these comments, see, Exhibit

7

the respondent CPV's

counsel declared that such a study was irrelevant to the approval

o

the amended

site plan.

[viii] This conclusion

is

erroneous as a matter

o

law since studying such off site

impacts is plainly required by SEQRA, has never been done in this instance and

its

completion was made more acute and critical by the change in New York

State

policy recognizing the potentially injurious and dangerous impact ofhydro

fracking, the productive process upon which the respondent CPV intends to rely.

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B.

THE NEW DECLARATION THAT THE LONG EARED BAT IS N

ENDANGERED SPECIES

[i] The original FEIS and the Board s Statement ofFindings for this project failed

to study its impact on the habitat

of

the Northern long-eared bat, though it claimed

the project would have no significant impact on the Indiana bat, See, Exhibit 2 at

pages 63-64.

[ii] On January 15, 2015, the Fish and Wildlife Service published a proposed rule

under section 4(d) of the Endangered Species Act declaring the Northern long-

eared bat an endangered species and entitling that bat to enumerated statutory and

regulatory protections See. Exhibit

8

[iii] On

April2

2015, the Fish Wildlife Service determined and declared that

the Northem long-eared bat is an endangered species, See, Exhibit 9 for relevant

federal register publication dated April 2, 2015.

[iv] By dint

of

the rule, which became effective on May 4, 2015, no one is

permitted to take such species from their natural habitats or disturb said habitats.

[v] Accordingly, a developer seeking to effect potential N01ihern long-eared bat

habitats was required to assess the impact

of

the proposed activity on this

endangered species and, more specifically, the suitability

of

any of the to-be-

disturbed habitats for this species.

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[vi] Notwithstanding this new determination of endangered species status, which

was made known at the public hearing before the Board on April 8, 2015,

respondent Board did not require respondent CPV to prepare an SEIS assessing the

impact

of

its project on this endangered species, which has historically used

the

farm lands on the project property as a habitat, see, Exhibit 3, p. 26, I 9-27,

l

22.

[vii] To date, as with regard to the promotion offracking, no study

of

the impact

of

this project, as amended, on this endangered species or its habitat has been

conducted or required.

C N WLY DISCOVERED INFORMATION ON BOG TURTLE HABIT AT

[i] The original FEIS for this project purpOiied to study its impact on the habitat

of

bog tmiles and concluded that such species do not nest or otherwise utilize the

lands as a habitat.

[ii] Since the Board s acceptance

of

the FEIS, petitioners have lea.med that the

original naturalist hired to study this issue had been terminated after expressing

preliminary conclusions contrary to respondent

CPV s

development interests, see,

Exhibit 3, p. 27,

I

23-28,

I

21.

[iii] At the April 8, 2015 public hearing, a letter suggesting the potentially

deleterious impact

of

the project on bog turtle habitat was presented to the Board,

See, Exhibit 8 hereto, which shows that [a] bog turtle habitats were found in recent

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years near the parcel and [b] the site conditions on the parcels proposed for

construction o the facility appear propitious as and for bog turtle habitats.

[iv] As with the impact on inducing the dangerous practice offi·acking and

the

impact

o

this project on the long-eared bat population, the respondent Board

refused to require the applicant, respondent CPV, to prepare a SEIS reviewing this

and take a hard look at the newly discovered evidence.

D

NEWLY DISCOVERED INFORM TION ON DELETERIOUS

HE LTH EFFECTS FROM DISCH RGE OF P RTICUL TE

M TTER FROM THE PRODUCTION PROCESS

[i] Respondent Board s May 2012 Statement o Findings concluded that the

facility s construction and operation will not result in any significant adverse

impacts to air quality. See, Exhibit 2, page 41.

[ii] However, the Statement o Findings acknowledges that the facility is

considered a major stationary source that is proposed in an attainment area for a

regulated air pollutant and, therefore, subject to the Clean Air Act s requirement

for a

Prevention

o

Significant Deterioration [PSD] permit review.

[iii] That review was to assess,

inter alia

particulate matter sized 10 and 2.5

microns or smaller [known as P w and PM

2 s]

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[iv] The Statement o Findings also acknowledges that the facility will be located

in an area

o

non-attainment for ozone and PM2.s, which subjects it to the Clear Air

Acts ' non-attainment new source review program

i

certain

o

its potential

emissions exceed a designated yearly threshold, which was also acknowledged.

[v] The Statement ofFindings concludes that the project will yield a net air quality

benefit, but acknowledges that at the time

o

its release and adoption, the project

had not yet completed regulatory agency review in conjunction with either the state

or federal PSD and non attainment new source review requirements and process.

[vi] Notwithstanding the absence o the required permits, the Statement

o

Findings cleared the project with regard to air pollution issues.

[vii] As noted, the operation o the facility discharges particulate matter which

contains dangerous substances that are tightly regulated.

[viii] Though acknowledging that federal and state regulators had not yet

completed regulatory review

o

the application, the original Statement o Findings

found that these particulate discharges would be within safe limits and would

have no injurious impact on nearby residents.

[ix] During the conduct

o

the DEIS, within lz mile

o

the site and within

the

zone

o

interest, new work force housing was erected.

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[x] Since the completion of the FEIS Harvard University School

of

Public Health

has issued a new longitudinal study showing the adverse impact

of

the release of

particulates specifically

PMzs

on human health citing statistical evidence which

showed the increased rates

of

autism in those whose mothers resided near such

facilities and were exposed to this form

of

air pollution during their pregnancies

see Exhibit 10 for study.

[xi] As with the other issues discussed in A-C above this study was presented to

the Board at its AprilS 2015 public hearing see Exhibit 3 p. 21 1. 20-22 l 2.

[xii] However the Planning Board declined to require the applicant respondent

CPV to take a hard look at this study and review the new evidence concerning the

potentially injurious effects upon human well-being

of

the siting

of

such a facility

within such close proximity to human habitation.

[xiii] Petitioners and their families are within the zone

of

danger associated with

this increased health risk and run a higher risk than previously understood or

known to suffer deleterious health effects fi·om the approval

of

the amended site

plan.

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V C USES OF CTION

S ND FOR FIRST C USE OF CTION

27. Petitioners incorporate paras. 1-26 herein as if fully restated.

28. By failing to require the completion

of

a SEIS to assess the impact

of he

factors set forth as para. 26 A-D, respondent Board acted in an arbitrary and

capricious manner contrary to SEQRA and settled law.

S ND FOR SECOND C USE OF CTION

29. Petitioners incorporate paras. 1-28 herein as

if

fully restated.

30. By failing to prepare an SEIS to assess the impact

of

the factors set fmih as

para. 26 A-D, respondent CPV violated SEQRA and settled law.

VI. PR YER FOR RELIEF

WHEREFORE, petitioners pray that this Honorable Court [a] vacate the

approval

of

the amended site plan given by the respondent Board on April22,

2015;

[b]

remand the matter

of

respondent

CPV s

application for amended

site

plan approval to that Board for the preparation

of

an SEIS which takes a hard look

at the matters referenced in para. 26 A-D above and any other matter which reflects

either a change in circumstance or new information since respondent Planning

Board s approval

of

respondent

CPV s

FEIS in 2013; [

c]

award to petitioners the

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costs and disbursements

o

this action and [d enter any other order required by

equity and/or law.

Dated: May 20, 2015

Sussman Watkins

1 Railroad A venue, Ste. 3

PO Box

1005

Goshen, New York 10924

845)-294-3991

17

Yours, etc.

ICHAEL H. SUSSMAN

Counsel for Petitioners


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VERIFIC TION

STATE OF

NEW

YORK

)

ss:s.

COUNTY OF ORANGE

)

Joseph Viserta, having been duly sworn, hereby states under pains and

penalties ofpe1jury:

1

I am the plaintiff in this matter.

2. I am an adult of legal age and reside in Orange County.

3. I have retained Sussman Watkins as my counsel in this matter.

4. I have reviewed the annexed Verified Complaint my counsel has prepared.

5. I have personal knowledge of the facts relevant to this matter and hereby verify

that the facts set forth in the annexed Verified Complaint are true and accurate

to

my knowledge and belief. /

loR

Signed and sworn to before me thisl_Q_ ofMay 2015.

7

N01fARY PUBLIC

My commission expires:

GERYL

L PRESCOTT

Notary Pubiic State ni New York

No. o· PR6 H62

Qualified ·

1

n Rockland County

1;

Commission Expires Oct. 19,2


19/19

VERlFIC TION

STATE OF

NEW

YORK

)

) ss:s.

COUNTY OF ORANGE

)

Adriana Groenestyn , having been duly sworn, hereby states under pains and

penalties

of

petjury:

1

I am the plaintiff in this matter.

2. I am an adult

of

legal age and reside in Orange County:

3. I have retained Sussman Watkins as my counsel in this matter.

4

I have reviewed the annexed Verified Complaint my counsel has prepared.

5. I have personal knowledge

of

the facts relevant to this matter and hereby

verifY

that the facts set forth in the annexed Verified Complaint are true and accurate to

my knowledge and belief.

Signed and sworn to before me thisJ.Q_ ofMay 2015.

My

commission expires:

GERYL L PRESCOTT

Notary Public, State of New York

No. 01 PR6014620 .

Qualified in Rockland County/ \ :>

Comm•ss1on

Expires Oct. 19, 2

G

cpv art78 verified petition

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