preserve hudson valley suit - kj annexation

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ----------------------------------------------------------------------x PRESERVE HUDSON VALLEY, JOHN ALLEGRO and LOUIS M. CERQUA Petitioners/Plaintiffs, - against - TOWN BOARD OF THE TOWN OF MONROE, TOWN OF MONROE SUPERVISOR HARLEY DOLES, VILLAGE BOARD OF THE VILLAGE OF KIRYAS JOEL, ACTING COMMISSIONER MARC GERSTMAN AS SUCCESSOR TO JOSEPH MARTENS OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, EMANUEL LEONOROVITZ, BASYA SABOY, MENDE BREUER, ELLA BREUER, CONG BETH ARYEH, ESTHER STESSEL, 257 MOUNTAINVIEW TRUST/ERWIN LANDAU, DAVID GOLDBERGER, TZIPORA GOLDBERGER, 483 105 CORP., 481 COUN. CORP., PORT ORANGE HOLDINGS, ISIDOR LANDAU, PROVIDER-HAMASPIC OC, JOEL BRACH, HENRY WEINSTOCK, BETH FREUND, JOSEPH STRULOVITCH 1, LLC, LILLIAN STRULOVITCH, PINCUS J. STRULOVITCH, HERBST FAMILY HOLDINGS LLC, HASHGUCHA PRUTIUS LLC, BE & YO REALTY, INC., BENNY WERCBERGER, RACHEL WERCBERGER, ISRAEL WEBER, SIGMOND BRACH, FOREST EDGE DEVELOPMENT, LLC, BRUCHA PROPERTIES LTD., FOREST ROAD, NAFTALI AUSCH, KENT NEIGHBORHOOD, LLC, RAFOEL A. KRAUSZ, ELIYAHU POLATESECK, ROSA POLATSECK, MOISHE OPPENHEIM, WOLF WERCBERGER, ZALMEN STERN, RIVKA OPPENHEIM, LIPA OPPENHEIM, YEHUDA BERGER, SEVEN SPRINGS CORP., MENDEL OPPENHEIM, RAIZEL EVA FREUND, ISAAC GLANZER, JUDY GLANZER, MOSES GOLDBERGER, SIMON GELB, SAMUEL KAHAN, 7 SPRINGS VILLAS LLC, CHAIM LANDAU, JOSEF FRIEDMAN, FRIDA FREIDMAN, SILAH

Index No.

VERIFIED ARTICLE 78 PETITION

AND COMPLAINT

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ROSENBERG FAM, LLC, DEBORAH ROSENBERG, ABRAHAM ROSENBERG, ISAAC ROSENBERG, FOREST ROAD CAPITAL, LLC, COMMANDEER REALTY ASSOC. INC., AMAZON/BURDOCK RLTY ASSOC INC., ATKINS BROS INC., DER BLATT, INC., BAIS YISSROEL CONG, BERSH STERN, ALEX NEUSTADT, CHAIM FRIEDMAN, GOLDY FRIEDMAN, SEVEN SPRINGS RLTY INC., SARA GELB, ERNO BODEK, RACHEL BODEK, ARTHUR MEISELS, AM SEVEN SPRINGS LLC, JACOBS HICKORY LLC, 282 MOUNTAINVIEW DRIVE, LLC, JOEL REISMAN, PAULA RESIMAN, VISTA PEARL LLC, KONITZ ESTATES, JACOB WIEDER, CHAYA WEIDER, MARSHA WAGSCHAL, CONG LANZUT OF O C, ELIAZER GLANZER, ESTHER GLANZER, 72 SEVEN SPRINGS RD LLC, 131 ACRES RD LLC, BAKERTOWN ESTATES LLC, 12 BAKERTOWN HOLDING, HARRY ARNSTEIN, ESTHER ARNSTEIN, SHRAGA GREEBAUM, RELY GREEBAUM, JACOB SCHWARTZ, RENEE SCHWARTZ, YEHOSUA WEINER, DEVORAH WEINER, ALFRED WEINGARTEN, SOLOMON ELLENBOGEN, HANA PERLSTEIN, SIMON KATZ, RAIZY ELLENBOGEN, BUILDING 54 LLC, MORDECHAI GOLDBERGER, MOUNTAINVIEW NY ESTATES, INC., ISRAEL WERZBERGER, YITTELE WERZBERGER, JOSSI LEIG WERZBERGER, NDS PROPERTY MANAGEMENT INC., BENJAMIN GREEN, CHAYA GREEN, CHAIM PARNES, MIRIAN PARNES, TOBIAS SCHREIBER, FEIGE SCHREIBER, MARTIN TERKELTAUB, ZIGMUND KLEIN, ORANGE NY HOMES, INC., VINTAGE APARTMENTS LLC, UPSCALE 4 HOMES CORP., JOSEPH STRULOVITCH 1, LLC, AES 11-07 TRUST, BAKERSTOWN REALTY EQUITIES, and JACOB BANDUA TRUST,

Respondents/Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Petitioners/Plaintiffs PRESERVE HUDSON VALLEY (“PHV”), JOHN

ALLEGRO (“Allegro”), EMILY CONVERS, (“Convers”), and Louis Cerqua (“Cerqua,”

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together with PHV, Allegro, and Convers, “Petitioners”), by their attorneys, Zarin & Steinmetz,

as and for its Verified Petition and Complaint, respectfully allege, as follows:

SUMMARY OF ACTION

1. Petitioners/Plaintiffs bring this proceeding pursuant to Article 78 of the

New York Civil Practice Law and Rules (“CPLR”) to challenge, annul, vacate and set aside:

(i) the Town Board (“Town Board”) of the Town of Monroe’s (“Town”)

Involved Agency Findings Statement, adopted September 8, 2015, purportedly pursuant to the

New York State Environmental Quality Review Act (“SEQRA”) (“Town Board’s SEQRA

Findings,” copy annexed hereto as Exhibit “A”);

(ii) the Town Board’s “Decision, Resolution, Order: 507.4 Acre and

163.8 Acre Annexation,” adopted September 8, 2015 (“Town Board’s Annexation Resolution,”

copy annexed hereto as Exhibit “B”);

(iii) the Village of Kiryas Joel (“Village”) Board of Trustees’ (“Village

Board”) Resolution, Findings and Order Approving the Petition for Annexation of 164 +/-

Acres from the Town of Monroe to the Village of Kiryas Joel, adopted September 6, 2015

(“Village Board’s 164 Resolution,” copy annexed hereto as Exhibit “C”);

(iv) the Village Board’s Resolution, Findings and Order Approving the

Petition for Annexation of 507 +/- Acres from the Town of Monroe to the Village of Kiryas

Joel, adopted September 6, 2015 (“Village Board’s 507 Resolution,” copy annexed hereto as

Exhibit “D”);

(v) the Village Board’s SEQRA Statement of Findings, adopted

September 6, 2015 (“Village Board’s SEQRA Findings,” copy annexed hereto as Exhibit “E”);

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(vi) the Village Board’s Findings with Respect to Compliance of the 507-

Acre and 164-Acre Petitions for Annexation with the provisions of Article 17 of the General

Municipal Law and with Respect to the Effect of such Proposed Annexations on the Over-All

Public Interest,” dated September 6, 2015 (“Village Board’s Annexation Findings,” copy

annexed hereto as Exhibit “F”); and

(vii) the Commissioner (the “Commissioner”) of the New York State

Department of Environmental Conservation’s (“DEC”) determination to designate the Village

Board as Lead Agency for the subject SEQRA review, dated January 28, 2015. (Copy annexed

hereto as Exhibit “G”.)

2. To the extent necessary, the claims set forth herein should be deemed to

be for declaratory relief.

3. There are two petitions for the annexation of territory from the Town to

the Village that are at issue here:

(i) a petition, submitted on or about December 27, 2013, to the Town Council

and the Village Board, which purports to seek the annexation to the Village of approximately

507 acres of territory in the Town (the “507 Petition”), and;

(ii) a petition, submitted on or about August 20, 2014, to the Town Council

and the Village Board, which purports to seek the annexation by the Village of approximately

164 acres of land in the Town (the “164 Petition,” collectively with the 507 Petition, the

“Annexation Petitions”)

4. The Town Board’s and the Village Board’s respective determinations on

the Annexation Petitions, were and remain unconstitutional, illegal, irrational, arbitrary and

capricious, and ultra vires for a variety of reasons, including, but not limited to:

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• Violation of Establishment Clause: The Town Board’s and the Village Board’s determinations on the Annexation Petitions would unconstitutionally cede electoral territory and political power to a political subdivision whose franchise is, in effect, determined by a religious test. See Board of Education of Kiryas Joel Village School District v. Grument, et al. (“Kiryas Joel”), 512 U.S. 687, 114 S. Ct 2481 (1994) (holding that legislative action that created a separate school district solely to serve the Village’s “distinctive population” impermissibly delegated political power “to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism”). The unconstitutional result posed by the Annexation Petitions, in and of itself, renders their form and content noncompliant with Article 17 of the General Municipal Law (the “Municipal Annexation Law”);

• Arbitrary Designation of Village Board As Lead Agency: In

settling the dispute between the Town Council and the Village Board as to which should serve as Lead Agency for the subject SEQRA review, the DEC Commissioner was required to consider criteria including “which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action. 6 N.Y.C.R.R. § 617.6(b)(5)(v). The Commissioner, however, ignored the Village’s proven history of willful noncompliance with environmental and land use requirements, including SEQRA. The resulting willfully defective environmental review comes as no surprise;1

• Arbitrary and Capricious SEQRA Determination By Town

Council: The Town Board’s own SEQRA Findings state that “a supplemental [generic environmental impact statement] needs to be prepared to properly address the buildout potential of the entire [Village with the Proposed Annexations] and provide the public with an opportunity to comment on the anticipated impacts associated with the proposed annexation and resulting/anticipated increase in density and population of the 507 acres of existing Town lands as well as the 164 acre alternative annexation.” The Town Council thus rejected the 507 Petition. The Town Council offered no explanation in its SEQRA Findings as to why it came to a completely inconsistent determination in favor of the 164 Petition. As the Town Board’ss own consultant advised: “the proposed annexations cannot be properly evaluated by the Monroe Town Board and others” because of the large gaps in the analysis. Furthermore, the Board of Education for the Monroe-Woodbury Central School District (“MWCSD”) concluded that even using the “inaccurate premises” in the environmental analysis, “the impact on MWCSD cannot be overcome.” The Town Board’ss issuance of SEQRA Findings in favor of the 164 Petition was thus irrational;

• Arbitrary and Capricious SEQRA Determination By Village

Board: Fortunately the law is clear, as stated in a decision vacating another flawed environmental review by the Village, that “[o]ne cannot presume that the requisite ‘hard look’ was taken based on the thickness of the DEIS or because the [agency’s] consultants were highly

1 Petitioners/Plaintiffs already have a pending challenge to the DEC Commissioner’s designation of the Village Board as Lead Agency, which the respondents in that proceeding have argued is premature. See Preserve Hudson Valley, Inc., et al. v. N.Y.S. D.E.C., et al, Index No. 2015-001707 (Sup. Ct. Orange Co.) (Connolly, J.). The same challenge is raised herein in an excess of caution.

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regarded in their fields.” See Cnty. of Orange v. Vill. of Kiryas Joel, 11 Misc. 3d 1056(A), 815 N.Y.S.2d 494 (Sup. Ct. Orange Cnty. 2005) aff’d as modified, 44 A.D.3d 765, 844 N.Y.S.2d 57 (2d Dept. 2007). The Village’s SEQRA Findings are flawed in multiple respects, including their arbitrary and irrational use of 2025 as the outside date for impacts analysis. As the Town Board’s consultant, the Orange County Planning Department, the MWCSD, and many others pointed out, the subject SEQRA review was fundamentally flawed because it limited analysis to 10 years out – to end the impacts analysis at 2025. The Village itself, however, submitted projections to the State Environmental Facilities Corporation for incredibly high density development through 2045, which, in the absence of rational mitigation measures, will cause unsustainable impacts on water, sewer, and many other areas of environmental concern.

• Improper Use of Annexation to Up-Zone: The Courts uniformly

hold that municipalities are not permitted to use annexation to evade existing zoning constraints. The Village, however, has made it clear that if either Annexation were allowed, it would amend the applicable zoning to allow for high-density development. For this reason alone, the form and content of the Annexation Petitions fails to comply with the Municipal Annexation Law;.

• Improper Creation of “Baroque” Boundaries: New York

Courts reject proposed annexations that would result in “baroque” or “irregular and jagged indentations of the boundaries between the municipalities.” The form and content of the 507 Petition, in particular, fails to comply with the Municipal Annexation Law because it would create baroque boundaries, and adversely affect the “unity of community” of the Town residents left behind in an isolated “island;”

• Violation of Town Ethics Code: The Town Council Members

who voted in favor of the 164 Petition violated the Town Code’s Standard of Conduct, which establishes that no Town Council Member can take any action that “cause[s] voluntary segregation, directly or indirectly, based upon creed.” (Monroe Town Code § 4-4(J)(1).) The Municipal Annexation Law be construed to avoid objectionable results, such as violations of the Town’s Standard of Conduct. See, e.g., N.Y. Stat. § 148;

• Insufficient Signatures and Territorial Description: The form

and content of the Annexation Petitions otherwise violates the form and content of the Municipal Annexation Law because the Petitions were ascribed by insufficient signatures and lack a clear description of the territory proposed for Annexation, and;

• Violation of Prior Jurisdiction Rule: The Prior Jurisdiction Rule

establishes that where there in a prior proceeding concerning certain territory pending, jurisdiction to consider and determine other proceedings concerning the same territory is excluded. Under this Rule, once the 507 Petition was initiated, no other Annexation Petition concerning the same territory could be initiated until the 507 Petition process was concluded. Consequently, the processing of the 164 Petition was ultra vires.

5. Accordingly, the subject determinations should be reversed,

vacated and nullified.

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THE PARTIES

6. Petitioner/Plaintiff Preserve Hudson Valley, Inc. (“Preserve Hudson

Valley”) is a duly registered Not-for-Profit Corporation with offices located at 1150 East

Mombasha Road, Monroe, New York 10950.

7. Preserve Hudson Valley’s aims are: (i) to preserve and protect

Orange County, New York and surrounding areas from overdevelopment, including efforts to

promote the sustainability of all resources, and; (ii) to preserve and defend the constitutional and

historic separation of religion from government institutions in order to protect the public interest

of the citizens of Orange County.

8. This proceeding is germane to Preserve Hudson Valley’s purpose.

9. Multiple members of Preserve Hudson Valley have individual

standing to challenge the subject actions, including Petitioner/Plaintiff John Allegro.

10. The participation of none of Preserve Hudson Valley’s members is

necessary to the relief requested herein.

11. Petitioner/Plaintiff John Allegro (“Allegro”) resides at 288 Seven

Springs Mountain Road in the Town of Monroe, New York.

12. Mr. Allegro resides within approximately 550 feet from the territory

that is the subject of the 507 Petition.

13. Mr. Allegro would be directly and uniquely impacted by the

annexation of Town land to the Village under either the 164 or the 507 Petition.

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14. Mr. Allegro would, for example, be uniquely adversely impacted by

the adverse, unstudied impacts resulting from either the 164 or the 507 Petition on aesthetics,

visual concerns, and community character.

15. Mr. Allegro has a daughter who attends the MWCSD public

schools, which would be adversely impacted by the unstudied significant adverse impacts of the

Proposed Annexation.

16. Petitioner/Plaintiff Emily Convers (“Convers”) resides at 22 Sunset

Heights, in the Town of Monroe, New York.

17. Ms. Convers is in Orange County Sewer District #1, which would

be adversely impacted by the unstudied significant adverse impacts of the Proposed Annexation.

18. Ms. Convers has two sons who attend the MWCSD public schools,

which would be adversely impacted by the unstudied significant adverse impacts of the Proposed

Annexation.

19. Petitioner/Plaintiff Louis M. Cerqua (“Cerqua”) resides at 300

Forest Road in the Town of Woodbury, New York.

20. Mr. Cerqua resides adjacent to the territory that is the subject of

both the 164 and the 507 Petition.

21. Mr. Cerqua would, for example, be uniquely adversely impacted by

the adverse, unstudied impacts of resulting from either the 164 or the 507 Petition on aesthetics,

visual concerns, and community character.

22. Respondent/Defendant the Town Board of the Town of Monroe is

the elected body of the Town, with offices at 11 Stage Road in the Town of Monroe, New York.

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23. Respondent/Defendant Harley Doles is the Supervisor of the Town

of Monroe, with offices at 11 Stage Road in the Town of Monroe, New York.

24. Supervisor Doles acts as a member of the Town Board, and voted

on the subject Town Board determinations.

25. Respondent/Defendant the Village of Kiryas Joel (the “Village”)

Board of Trustees (the “Village Board) is the elected body of the Village, with offices at 51

Forest Road in the Village of Kiryas Joel, New York.

26. Respondent/Defendant Marc Gerstman, is the Acting Commissioner

(“Commissioner Gerstman”) of the New York State Department of Environmental Conservation

(“DEC”), with offices at 625 Broadway in the City of Albany, New York.

27. Commissioner Gerstman is the successor to DEC Commissioner

Joseph J. Martens.

28. Commissioner Martens rendered the determination designating the

Village Board as the Lead Agency for the subject SEQRA review.

29. The New York State Department of Environmental Conservation is

an agency of the State of New York, with offices at 625 Broadway in the City of Albany, New

York.

30. Upon information and belief, Emanuel Leonorovitz and Basya

Saboy, are listed as signators of the 507 Petition and purport to be the owners of real property

located at 266 Mountainview Drive, Monroe, New York 10950.

31. Upon information and belief, Mende Breuer, is listed as a signator

of the 507 Petition and purports to be the owner of real property located at 215 Mountainview

Drive, Monroe, New York 10950 and 221 Mountainview Drive, Monroe, New York 10950.

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32. Upon information and belief, Ella Breuer, is listed as a signator of

the 507 Petition and purports to be the owner of real property located at 245 Mountainview

Drive, Monroe, New York 10950.

33. Upon information and belief, Cong Beth Aryeh, by Esther Tamb, is

listed as a signator of the 507 Petition and purports to be the owners of real property located at

230 Mountainview Drive, Monroe, New York 10950.

34. Upon information and belief, Esther Stessel, is listed as a signator of

the 507 Petition and purports to be the owners of real property located at 277 Mountainview


35. Upon information and belief, 257 Mountainview Trust/Erwin

Landau Trust & Erwin Landau as Trustee are listed as signators of the 507 Petition and purport

to be the owners of real property located at 257 Mountainview Drive, Monroe, New York 10950.

36. Upon information and belief, David Goldberger and Tzipora

Goldberger, are listed as signators of the 507 Petition and purport to be the owners of real

property located at 269 Mountainview Drive, Monroe, New York 10950.

37. Upon information and belief, 483 105 Corp., by Martin Schlesinger,

is listed as a signator of the 507 Petition and purports to be the owner of real property located at

483 County Route 105, Monroe, New York 10950.

38. Upon information and belief, 481 Coun. Corp., by Martin

Schlesinger, is listed as a signator of the 507 Petition and purports to be the owner of real

property located 481 Co Rte 105, Monroe, New York 10950.

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39. Upon information and belief, Port Orange Holdings, by Isidor

Landau, is listed as a signator of the 507 Petition and purports to be the owner of real property

located at Spring Rd., Monroe, New York 10950.

40. Upon information and belief, Isidor Landau, is listed as a signator of

the 507 Petition and purports to be the owner of real property located at 21 Cliff Ct., Monroe,

New York 10950.

41. Upon information and belief, Provider-Hamaspic OC, by Moses

Wertheimer, is listed as a signator of the 507 Petition and purports to be the owner of real

property located at 121 Acres Rd., Monroe, New York 10950.

42. Upon information and belief, Joel Brach, is listed as signator of the

507 Petition and purports to be the owner of real property located at 29 Chevron Rd., Monroe,

New York 10950.

43. Upon information and belief, Henry Weinstock, is listed as a

signator of the 507 Petition and purports to be the owner of real property located at 273

Mountainview Drive, Monroe, New York 10950.

44. Upon information and belief, Beth Freund, by Leopold Freund, is

listed as a signator of the 507 Petition and purports to be the owner of real property located at

236 Acres Road, Monroe, New York 10950.

45. Upon information and belief, Joseph Strulovitch 1, LLC, by Joseph

Strulovitch, is listed as a signator of the 507 Petition and purports to be the owner of real

property located at14 Israel Zupnic, Monroe, New York 10950.

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46. Upon information and belief, Lillian and Pincus J. Strulovitch, are

listed as signators of the 507 Petition and purport to be the owners of real property located at 180

Acres Road, Unit 201, Monroe, New York 10950.

47. Upon information and belief, Herbst Family Holdings LLC, by

Henry Herbst, is listed as a signator of the 507 Petition and purports to be the owner of real

property located 210 Acres Road, Monroe, New York 10950.

48. Upon information and belief, Hashgucha Prutius LLC, by Simon

Weiss, is listed as a signator of the 507 Petition and purports to be the owner of real property

located St. Rte. 17 M, Monroe, New York 10950.

49. Upon information and belief, Be & Yo Realty, Inc., is listed as a

signator of the 507 Petition and purports to be the owner of real property located at 37 Raywood

Dr., Monroe, New York 10950.

50. Upon information and belief, Benny Wercberger and Rachel

Wercberger, are listed as signators of the 507 Petition and purport to be the owners of real

property located at 250 Mountainview Drive, Monroe, New York 10950.

51. Upon information and belief, Israel Weber, is listed as a signator of

the 507 Petition and purports to be the owner of real property located at 117 Bakertown Road,

Monroe, New York 10950.

52. Upon information and belief, Sigmond Brach, is listed as a signator

of the 507 Petition and purports to be the owner of real property located at 75 Seven Springs

Road, Monroe, New York 10950.

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53. Upon information and belief, Forest Edge Development, LLC, by

Sigmond Brach, is listed as a signator of the 507 Petition and purports to be the owner of real

property located at 11 Mountain Road, Monroe, New York 10950.

54. Upon information and belief, Brucha Properties Ltd., by Naftali E.

Ausch, is listed as a signator of the 507 Petition and purports to be the owner of real property

located at Forest Road, Monroe, New York 10950.

55. Upon information and belief, Naftali Ausch, is listed as a signator of

the 507 Petition and purports to be the owner of real property located at 165 Schunnemunk Road,


56. Upon information and belief, Kent Neighborhood, LLC, by Mayer

H. Grunbaum, is listed as a signator of the 507 Petition and purports to be the owner of real

property located at 73 Seven Springs Road, Monroe, New York 10950.

57. Upon information and belief, Rafoel A. Krausz, is listed as a

signator of the 507 Petition and purports to be the owner of real property located at 31 Seven

Springs Road, Monroe, New York 10950.

58. Upon information and belief, Eliyahu Polateseck, is listed as a



59. Upon information and belief, Rosa Polatseck, is listed as a signator



60. Upon information and belief, Wolf Wercberger, is listed as a


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Springs Mtn. Rd., Monroe, New York 10950 and 148 Seven Spring Mtn. Road, Monroe, New

York 10950.

61. Upon information and belief, Moishe Oppenheim, is listed as a

signator of the 507 Petition and purports to be the owner of real property located at Co. Hwy 44,


62. Upon information and belief, Zalmen Stern, is listed as a signator of

the 507 Petition and purports to be the owner of real property located at 124 Seven Springs Road,


63. Upon information and belief, Rivka Oppenheim, is listed as a



64. Upon information and belief, Lipa Oppenheim, is listed as a signator



65. Upon information and belief, Yehuda Berger, is listed as a signator



66. Upon information and belief, Seven Springs Corp., by Moses

Oppenheim, is listed as a signator of the 507 Petition and purports to be the owner of real

property located at Seven Springs Rd., Monroe, New York 10950.

67. Upon information and belief, Mendel Oppenheim, is listed as a

signator of the 507 Petition and purports to be the owner of real property located Seven Springs

Rd., Monroe, New York 10950.

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68. Upon information and belief, Raizel Eva Freund, is listed as a

signator of the 507 Petition and purports to be the owner of real property located at 22 Forest


69. Upon information and belief, Isaac Glanzer and Judy Glanzer, are


Forest Road, Monroe, New York 10950.

70. Upon information and belief, Moses Goldberger, is listed as a


Schunnemunk Road, Monroe, New York 10950.

71. Upon information and belief, Simon Gelb, is listed as a signator of

the 507 Petition and purports to be the owner of real property located at 36 Forest Road, Unit

201, Monroe, New York 10950

72. Upon information and belief, Samuel Kahan, is listed as a signator

of the 507 Petition and purports to be the owner of real property located at 36 Forest Road, Unit

202, Monroe, New York 10950.

73. Upon information and belief, 7 Springs Villas LLC, by Isaac

Rosenberg, is listed as a signator of the 507 Petition and purports to be the owner of real property

located at Seven Springs Road, Monroe, New York 10950.

74. Upon information and belief, Chaim Landau, is listed as a signator

of the 507 Petition and purports to be the owner of real property located at Seven Springs Road,


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75. Upon information and belief, Josef Friedman and Frida Freidman,

are listed as signators of the 507 Petition and purport to be the owners of real property located at

121 Schunnemunk Road, Monroe, New York 10950.

76. Upon information and belief, Silah Rosenberg Fam, LLC, by Silah

Rosenberg, is listed as a signator of the 507 Petition and purports to be the owner of real property

located at 137 Schunnemunk Road, Monroe, New York 10950.

77. Upon information and belief, Deborah Rosenberg, is listed as a



78. Upon information and belief, Abraham Rosenberg and Isaac

Rosenberg, are listed as signators of the 507 Petition and purport to be the owners of real

property located at Schunnemunk Road, Monroe, New York 10950.

79. Upon information and belief, Forest Road Capital, LLC, by Isaac

Jacobowitz, is listed as a signator of the 507 Petition and purports to be the owner of real

property located at 264 Forest Road, Monroe, New York 10950.

80. Upon information and belief, Commandeer Realty Assoc. Inc., is


Co. Hwy 44, Monroe, New York 10950.

81. Upon information and belief, Amazon/Burdock Rlty. Assoc. Inc., by

Elozer Gruber, is listed as a signator of the 507 Petition and purports to be the owner of real

property located at 77 Acres Rd., Monroe, New York 10950; 67 Acres Rd., Monroe, New York

10950; Acres Rd., Monroe, New York 10950 and St. Rte. 208, Monroe, New York.

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82. Upon information and belief, Atkins Bros Inc., by Elozer Gruber, is


Raywood Dr., Monroe, New York 10950.

83. Upon information and belief, Der Blatt, Inc., by Elimelech Deutsch,


220 Seven Springs Mountain Road, Monroe, New York 10950.

84. Upon information and belief, Bais Yissroel Cong, by Chana

Werzberger, is listed as a signator of the 507 Petition and purports to be the owner of real

property located at157 Schunnemnk Rd., Monroe, New York 10950.

85. Upon information and belief, Bersh Stern, is listed as a signator of

the 507 Petition and purports to be the owner of real property located at 55 Seven Springs Road,


86. Upon information and belief, Alex Neustadt, is listed as a signator



87. Upon information and belief, Chaim Friedman and Goldy Friedman,


139 Seven Springs Road, Monroe, New York 10950.

88. Upon information and belief, Seven Springs Rlty Inc., by Aaron H.

Weiss, is listed as a signator of the 507 Petition and purports to be the owner of real property

located at 115 Seven Springs Road, Monroe, New York 10950.

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89. Upon information and belief, Sara Gelb, is listed as a signator of the

507 Petition and purports to be the owner of real property located at 85 Seven Springs Road,


90. Upon information and belief, Erno Bodek and Rachel Bodek, are



91. Upon information and belief, Arthur Meisels, is listed as a signator



92. Upon information and belief, AM Seven Springs LLC, by Arthur

Meisels, is listed as a signator of the 507 Petition and purports to be the owner of real property

located at Seven Springs Road, Monroe, New York 10950.

93. Upon information and belief, Jacobs Hickory LLC, by Bernard


property located at State Route 17M, Monroe, New York 10950; Seven Springs Rd., Monroe,

New York 10950 and 52 Hickory Hollow Rd., Monroe, New York 10950

94. Upon information and belief, 282 Mountainview Drive, LLC, by

Paula Reisman, is listed as a signator of the 507 Petition and purports to be the owner of real

property located at 282 Mountainview Drive, Unit 1, Monroe, New York 10950.

95. Upon information and belief, Joel Reisman, is listed as a signator of


Drive, Unit 2, Monroe, New York 10950.

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96. Upon information and belief, Paula Resiman and Joel Reisman, are


Mountainview Drive, Monroe, New York 10950.

97. Upon information and belief, Vista Pearl LLC, by Chaim H.

Oberlander, is listed as a signator of the 507 Petition and purports to be the owner of real

property located Chevron Rd., Monroe, New York 10950.

98. Upon information and belief, Konitz Estates, LLC by Chaim Tager,


105 Schunnemunk Road, Monroe, New York 10950.

99. Upon information and belief, Jacob Wieder and Chaya Weider, are


Lanzut Court, Monroe, New York 10950.

100. Upon information and belief, Marsha Wagschal, is listed as a

signator of the 507 Petition and purports to be the owner of real property located at 16 Lanzut

Court, Monroe, New York 10950.

101. Upon information and belief, Cong Lanzut of O C by Jacob Wieder,


16 Lanzut Ct., Monroe, New York 10950.

102. Upon information and belief, Eliazer Glanzer and Esther Glanzer,


40 Forest Road, Monroe, New York 10950.

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103. Upon information and belief, 72 Seven Springs Rd LLC by Lipa

Friedman, is listed as a signator of the 507 Petition and purports to be the owner of real property

located at 72 Seven Springs Road, Monroe, New York 10950.

104. Upon information and belief, 131 Acres Rd LLC by Lipa Friedman,



105. Upon information and belief, Bakertown Estates LLC, by Moshe

Preizler, is listed as a signator of the 507 Petition and purports to be the owner of real property

located at 105 Bakertown Road, Monroe, New York 10950.

106. Upon information and belief, 12 Bakertown Holding, LLC by

Moses Mizrahi, is listed as a signator of the 507 Petition and purports to be the owner of real

property located at 8 Israel Zupnik Drive, Monroe, New York 10950.

107. Upon information and belief, Harry Arnstein, Esther Arnstein,

Shraga Greebaum, Rely Greebaum, Jacob Schwartz, and Renee Schwartz, are listed as signators

of the 507 Petition and purport to be the owners of real property located at 24 Raywood Drive,


108. Upon information and belief, Yehosua Weiner and Devorah Weiner,



109. Upon information and belief, Alfred Weingarten, is listed as a

signator of the 507 Petition and purports to be the owner of real property located at 42 Irene


21

110. Upon information and belief, Solomon Ellenbogen, is listed as a

signator of the 507 Petition and purports to be the owner of real property located at 154 Acres

Rd., Unit 201, Monroe, New York 10950.

111. Upon information and belief, Hana Perlstein, is listed as a signator

of the 507 Petition and purports to be the owner of real property located at 154 Acres Rd., Unit

202, Monroe, New York 10950.

112. Upon information and belief, Simon Katz, is listed as a signator of



113. Upon information and belief, Raizy Ellenbogen, is listed as a


Springs Rd., Monroe, New York 10950.

114. Upon information and belief, Building 54 LLC by David Ausch, is


Rovna Way, Monroe, New York 10950; Chevron Rd., Monroe, New York 10950 and Chevron


115. Upon information and belief, Mordichai Goldberger, is listed as a

signator of the 507 Petition and purports to be the owner of real property located at Chevron Rd.,


116. Upon information and belief, Mountainview NY Estates, Inc. by

Joel Jacob, is listed as a signator of the 507 Petition and purports to be the owner of real property

located at 290 Mountainview Drive, Monroe, New York 10950.

22

117. Upon information and belief, Israel Werzberger, Yittele

Werzberger, Jossi Leig Werzberger and NDS Property Management Inc., are listed as signators

of the 507 Petition and purport to be the owners of real property located at 38 Raywood Drive,


118. Upon information and belief, Benjamin Green and Chaya Green, are


Irene Dr,, Monroe, New York 10950; 23 Irene Drive, Monroe, New York 10950; 24 Irene Drive,

Monroe, New York 10950 and Raywood Dr., Monroe, New York 10950

119. Upon information and belief, Chaim Parnes and Mirian Parnes, are


Raywood Drive, Monroe, New York 10950.

120. Upon information and belief, Tobias Schreiber and Feige Schreiber,



121. Upon information and belief, Forest Edge Development, LLC, by

Shlomo Weiss, is listed as a signator of the 164 Petition and purports to be the owner of real

property located at 11 Mountain Road, Monroe, New York 10950.

122. Upon information and belief, Israel Weber, is listed as a signator of

the 164 Petition and purports to be the owner of real property located at 117 Bakertown Road,


123. Upon information and belief, Amazon/Burdock Rlty Assoc Inc., by

Elozer Gruber, is listed as a signator of the 164 Petition and purports to be the owner of real

23

property located at 77 Acres Road, Monroe, New York 10950; 67 Acres Road, Monroe, New

York 10950; Acres Road, Monroe, New York 10950 and St Rte 208, Monroe, New York 10950.

124. Upon information and belief, Mordechai Goldberger, is listed as a

signator of the 164 Petition and purports to be the owner of real property located at Chevron


125. Upon information and belief, 12 Bakertown Holding, LLC, by

Moses Mizrahi, is listed as a signator of the 164 Petition and purports to be the owner of real

property located at 8 Israel Zupnik Dr., Monroe, New York 10950.

126. Upon information and belief, 483 105 Corp., by Joel Englander is


483 Co. Rte. 105, Monroe, New York 10950.

127. Upon information and belief, Martin Terkeltaub is listed as a

signator of the 164 Petition and purports to be the owner of real property located at 421 Co. Rte.

105, Monroe, New York 10950 and 439 Co. Rte. 105, Monroe, New York 10950.

128. Upon information and belief, Zigmund Klein is listed as a signator

of the 164 Petition and purports to be the owner of real property located at 463 Co. Rte. 105,


129. Upon information and belief, Orange NY Homes, Inc., by Samuel

Schwartz, is listed as a signator of the 164 Petition and purports to be the owner of real property

located at 465 Co. Rte. 105, Monroe, New York 10950.

130. Upon information and belief, Vintage Apartments LLC, by Moshe

Friedman, is listed as a signator of the 164 Petition and purports to be the owner of real property

located at 2 Rovna Way, Monroe, New York 10950.

24

131. Upon information and belief, Vista Pearl LLC, by Chaim

Oberlander, is listed as a signator of the 164 Petition and purports to be the owner of real

property located at Chevron Road, Monroe, New York 10950.

132. Upon information and belief, Upscale 4 Homes Corp., by Yoel

Grunhut, is listed as a signator of the 164 Petition and purports to be the owner of real property

located at 107 Seven Springs Mountain Road, Monroe, New York 10950.

133. Upon information and belief, Forest Road Capital, LLC, by Isaac


property located at 264 Forest Road, Monroe, New York 10950.

134. Upon information and belief, Beth Freund., by Leopold Freund, is



135. Upon information and belief, Herbst Faily Holdings, LLC, by Henry

Herbst, is listed as a signator of the 164 Petition and purports to be the owner of real property

located at 210 Acres Road, Monroe, New York 10950.

136. Upon information and belief, Pincus J. and Lillian Strulovitch, are


Acres Road, Monroe, New York 10950.

137. Upon information and belief, Joseph Strulovitch 1, LLC, by Pincus

J. Strulovitch, is listed as a signator of the 164 Petition and purports to be the owner of real

property located at 14 Israel Zupnik Dr., Monroe, New York 10950.

25

138. Upon information and belief, Solomon Ellenbogen is listed as a

signator of the 164 Petition and purports to be the owner of real property located at 154 Acres

Road, Unit 201, Monroe, New York 10950.

139. Upon information and belief, AES 11-07 Trust, by Elimelech

Schwartz, Trustee, is listed as a signator of the 164 Petition and purports to be the owner of real

property located at Acres Road, Monroe, New York 10950.

140. Upon information and belief, Bakerstown Realty Equities, by

Mendel Wieder is listed as a signator of the 164 Petition and purports to be the owner of real

property located at Acres Road, Monroe, New York 10950.

141. Upon information and belief, Jacob Bandua Trust, by Moshe

Bandau, is listed as a signator of the 164 Petition and purports to be the owner of real property

located at Acres Road, Monroe, New York 10950.

JURISDICTION

142. The Court has subject matter jurisdiction, and may exercise personal

jurisdiction over the Respondents/Defendants in this matter and/or may exercise personal and in

rem jurisdiction.

143. Pursuant to CPLR Section 506(b), venue is proper in this Court. The

determinations complained of were made, the proceedings sought to be restrained originated, and

the material events otherwise took place, in the County of Orange, which is situated within the

Ninth Judicial District.

144. No prior application for this or any similar relief has been made to

this or any other Court.

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STATEMENT OF FACTS

The Village’s Historic And Consistent Failure To Abide By Zoning, Land Use, And Environmental Laws Is Not In The Public Interest

Kiryas Joel Was Created 40 Years Ago Specifically To Avoid The Town’s Zoning Laws

145. As former Town Supervisor William C. Rogers’ ruling in 1976 on

the original petition to incorporate the Village of Kiryas Joel makes clear, the Village was

created with the express purpose of avoiding the Town of Monroe’s zoning laws. (See Decision

on Sufficiency of Petition in the Matter of the Formation of a New Village To be Known as

“Kiryas Joel,” Dec. 10, 1976.)

146. In response to the illegal conversion and illegal construction of

housing in the subdivision known as Monwood, the Town commenced legal proceedings to

compel conformance with its zoning laws. (See id. at 3-4.)

147. “Arduous opposition [was] thrown up” to the Town’s enforcement

efforts by Monwood business leaders, who were concerned that the Town’s zoning laws would

interfere with their development strategy. (Id. at 4.)

148. Former Supervisor Rogers indicated that the residents of the illegal

dwellings were unwitting victims of the business leaders’ evasion of the law. (Id.)

149. Rather than comply with the Town’s zoning laws, the leaders of the

Satmar community in Monwood sought to “slip away from the Town’s enforcement program”

through the village incorporation procedure under State law. (Id. at 7.)

150. Former Supervisor Rogers deemed this action to be “almost sinister

and surely an abuse of the right of self incorporation.” (Id.)

27

151. Supervisor Rogers rued the fact that, unlike Respondents the current

Town Board and Village Board, he could not comment on how the public interest would be

affected by the 1976 village incorporation petition. (Id. at 8 (“As much as I would like to deal

with the public interest question of this proposal and how I feel that it will endanger an otherwise

rural residential neighborhood of Monroe, by law, I cannot.”).)

152. He felt constrained to only pass on the sufficiency of the

incorporation petition. (Id. at 8-9.)

153. Presciently, former Supervisor Rogers predicted “more

confrontations as bitter as th[is] one” if the Kiryas Joel community continued to avoid the Town

of Monroe’s laws:

For the Satmars to believe that they are above or separate from the rules and regulations that Monroe has chosen to live by or try to impose their mores upon the community of Monroe, or to hide behind the self-imposed shade of secrecy or cry out religious persecution when there is none, will only lead to more confrontations as bitter as the one this decision purports to resolve.

(Id. at 9.)

154. History has, unfortunately, validated his concerns.

40 Years Later, The Village Does Not Comply With Applicable State And Federal Environmental And Land Use Laws

155. Throughout the Annexation process, it has become clear that the

Village still systematically disregards environmental regulations and other laws affecting the

public interest, which allows unregulated development and accompanying adverse impacts,

including:

• Routine failure to implement required environmental review under SEQRA;

28

• Serial violation of basic municipal planning and zoning requirements, including that the Village’s Planning and Zoning Board members do not satisfy the State-required training programs;

• Regular failure to refer land use matters to the Orange County Planning Department, as required by Section 239-m of the New York State General Municipal Law; and

• Repeated violations issued by DEC and the U.S. Environmental Protection Agency (“EPA”) of applicable environmental protection requirements.

156. In a written request under the New York State Freedom of

Information Law (“FOIL”), dated August 18, 2014, submitted by a citizens’ group, United

Monroe, for example, requested that the Village provide basic information relating to its

planning processes, including copies of all determinations made by any Village agencies under

SEQRA, such as positive declarations, negative declarations, conditional negative declarations

and/or findings statements. (See FOIL Request to the Village, dated Aug. 18, 2014 (the “August

18th FOIL”) .)

157. In response, the Village did not produce any determinations made

under SEQRA. (See Letter from Javid Afzali, Esq., to Daniel Richmond, Esq., dated Sept. 29,

2014; Letter from Javid Afzali, Esq., to Daniel Richmond, Esq., dated Nov. 10, 2014; E-mail

from Javid Afzali, Esq., to Krista Yacovone, Esq., dated Nov. 19, 2014.)

158. Indeed, the Village’s poor track record in implementing SEQRA is

well-documented. See County of Orange v. Village of Kiryas Joel, 11 Misc. 3d 1056(A), 815

N.Y.S.2d 494 (Sup. Ct. Orange Cnty. 2005) (“One cannot presume that the requisite ‘hard look’

was taken based on the thickness of the DEIS or because the [agency’s] consultants were highly

regarded in their fields.”), aff’d as modified, 44 A.D.3d 765, 844 N.Y.S.2d 57 (2d Dept. 2007).

159. The Village’s history of SEQRA noncompliance is a legitimate line

of inquiry where the subject action (i.e., the Annexations) would make the Village responsible

29

for additional SEQRA review in the future. (Cf. N.Y.S. D.E.C. Commissioner’s Policy, “Record

of Compliance Enforcement Policy,” at 3 (establishing that “the environmental compliance

history of a permit applicant is a relevant consideration regarding qualification for permitting”).)2

160. United Monroe also confirmed that the Village does not fully adhere

to other critical land use requirements.

161. In its August 18th FOIL request, United Monroe also asked the

Village to provide basic information relating to its planning processes, including (i) the identities

of the members of the Village Planning Board and Zoning Board; (ii) documents relating to

Village Planning Board and Zoning Board Members’ satisfaction of applicable training

requirements since January 2012; (iii) all Planning Board and Zoning Board agendas, minutes,

and resolutions since January 2012; and (iv) copies of all referrals made to the Orange County

Planning Department pursuant to Section 239-m of the New York State General Municipal Law

since January 2012.3

162. The Village’s response demonstrated that it routinely violates

municipal planning and zoning requirements, including that its Planning and Zoning Board

2 Courts will consider an agency’s history of noncompliance with environmental regulations when reviewing the adequacy of any environmental review conducted by that agency. See, e.g., Citizens Advisory Comm. on Private Prisons, Inc. v. U.S. Dept. of Justice, 197 F. Supp. 2d 226, 251 (W.D. Pa. 2001), aff’d, 33 F. App’x 36 (3d Cir. 2002) (“[I]n cases where the agency has already violated [the National Environmental Policy Act], its vow of good faith and objectivity is often viewed with suspicion.”); Nat’l Res. Def. Council, Inc. v. U.S. Army Corps of Eng’rs, 457 F. Supp. 2d 198, 222 n.178 (S.D.N.Y. 2006) (citing Citizens Advisory Comm. on Private Prisons when discussing federal regulations prohibiting agencies from preparing an EIS simply to justify decisions already made, and requiring agencies to show a good faith and objective review of potential environmental impacts of the proposed action). Assessment of the Village’s history of poor environmental stewardship is therefore critical to an analysis of the proposed Annexations. 3 The Village initially did not even acknowledge the request, which was deemed by operation of law to be a constructive denial of the request, and United Monroe was compelled to commence an administrative appeal by letter dated September 15, 2014.

30

members do not satisfy the State-required training programs, and that it never refers land use

applications to the Orange County Planning Department, as is required by law.

163. Furthermore, both DEC and the EPA have found repeated violations

in the Village of applicable environmental protection requirements. (See Letter from United

Monroe to DEC, dated Apr. 4, 2014.)

164. These include violations of the Clean Water Act and failure to

comply with State permitting requirements during construction activities and operations of its

wastewater treatment plant. (See Letter from Daniel Richmond, Esq., to the Honorable Vincent

L. Briccetti, dated Nov. 24, 2014; Letter from Krista Yacovone, Esq., to Robert L. Ewing, dated

Dec. 3, 2014; Letter from Krista Yacovone, Esq., to Patrick Ferracane and Jennifer Zunino-

Smith, dated Dec. 16, 2014.)

165. The Village’s consistent failure to comply with these basic

requirements, which provide municipalities with mechanisms to protect the environment and the

community when making land use decisions, will allow for unregulated, high density

development that will cause significant harm to the environment and to citizens of Orange

County.

166. Absent a functioning planning process, future development could

proceed without limitation or concern for the surrounding community.

167. Such development would certainly not be in the public interest.

Facially Insufficient Petition Submitted For Annexation By Village of 507 Acres of Town Territory

168. On or about December 27, 2013, a petition was submitted to the

Town Board and the Village Board, which purported to seek the annexation by the Village of

approximately 507 acres of land in the Town (i.e., the 507 Petition).

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169. The 507 Petition fails to substantially comply in form and/or content

with multiple provisions of Article 17 of the General Municipal Law. See N.Y. Gen. Mun. Law

§ 705(1)(d).

170. Interested parties who timely objected to the form and content of the

507 Petition include the Board of Education of the Monroe-Woodbury Central School District

(“MWCSD”). (See Letter to Tim Miller Assocs. from Judith Crelin Mayle, dated June 22, 2015

(“June 22nd MWCD Letter”).)

Unqualified Signatures On 507 Petition

171. The 507 Petition is invalid in the first instance because it contains

multiple unqualified, invalid signatures. See N.Y. Gen. Mun. Law § 705(1)(a).

172. First, as the MWCDC pointed out, it is improbable that all listed

petitioners signed the 507 Petition on December 23, 2013, as the Petition asserts.

173. Moreover, as the MWCSD pointed out, the purported signatures

were not authenticated until four days later.

174. The MWCSD also pointed out “numerous substantial unauthorized

alterations” on the 507 Petition.

175. In addition, there are various corporate signatories, which, upon

information and belief, are not valid corporations under the New York State Business

Corporation Law, Not-for-Profit Corporation Law or Religious Corporations Law.

176. Konitz Estates, LLC, which is the alleged “owner of record” of

S/B/L 1-2-30.7, is not an active (or inactive) Corporation or Business Entity in New York State.

Congregation Lanzut of Orange County, the alleged “owner of record” of S/B/L 1-1-47.232, also

32

is not an active (or inactive) Corporation or Business Entity in New York State, and does not

appear to be validly formed under the Religious Corporations Law.

177. Similarly, Bias Yisroel Congregation, the alleged “owner of record”

of S/B/L 1-2-32.12, is not an active (or inactive) Corporation or Business Entity in New York

State, and does not appear to be validly formed under the Religious Corporations Law.

178. Finally, Atkins Brothers, Inc., the alleged “owner of record” of

S/B/L 43-1-12, is not an active (or inactive) Corporation or Business Entity in New York State.

179. The signatures of these entities should be stricken and the total

assessed valuation of the “Territory proposed to be annexed to the Village” should be reduced by

the assessed value of these parcels, i.e., $209,400.00.

180. Moreover, there are three (3) parcels listed in the 507 Petition that

are jointly owned by two (2) entities but for which only one signature was obtained: S/B/L 1-3-

14.21; 1-3-15; and 1-3-40.

181. These properties are purportedly owned by both Amazon Realty

Associates, Inc., and Burdock Realty Associates, Inc.

182. There is only one signatory, however, signing for each of these three

(3) parcels.

183. It is unclear whether the signatory, Elozer Gruber, is signing on

behalf of Amazon Realty Associates, signing on behalf of Burdock Realty Associates, or

purporting to sign on behalf of both entities.

184. Without a valid signature on behalf of both property owners, these

parcels cannot be included in the total assessed valuation of the “Territory proposed to be

annexed to the Village.”

33

185. The total valuation should be reduced by the assessed value of these

parcels, i.e., $145,300.00.

186. The 507 Petition should have been rejected by the Town Board and

the Village Board for failing to obtain valid qualified signatures.

507 Petition Does Not Describe The Territory To Be Annexed

187. The 507 Petition is also invalid because it does not sufficiently

describe the territory to be annexed. See N.Y. Gen. Mun. Law § 703(1); Bd. of Trustees of

Irvington, Westchester Cnty. v. Town Bd. of Greenburgh, Westchester Cnty., 42 A.D.2d 731,

345 N.Y.S.2d 667, 668 (2d Dept. 1973) (upholding dismissal of annexation petition as defective

where it did not contain an accurate description of the area sought to be annexed).

188. First, Exhibit A to the 507 Petition, which purports to contain the

legal description of the territory to be annexed from the Town to the Village, contains the legal

description for 164 parcels.

189. Exhibit C to the 507 Petition, hich purports to contain a certificate

signed by the Town Assessor responsible for preparing the 2013 Final Town Assessment Roll

and certifying that “the lots that Petitioners affirm they own within the Territory proposed to be

annexed have a total assessed valuation that is a majority of the total assessed valuation of all the

real property in the Territory proposed to be annexed, according to the 2013 Final Assessment

Roll of the Town,” in contrast contains 177 parcels.

190. It is wholly unclear which parcels comprise the Territory that

Petitioners seek to annex.

191. For this reason alone, the 507 Petition should have been rejected.

34

192. Second, the legal metes and bounds and accompanying parcel list

included in Exhibit A does not match the parcel list certified by the Assessor in Exhibit C.

193. The following parcels (by S/B/L number) were included in Exhibit

C as part of the “Territory proposed to be annexed to the Village as described in Exhibit A of the

Petition and as shown on the assessment roll of the Town for the year 2013,” but were not

included in Exhibit A:

- 1-1-4.2 - 1-1-4.32 - 1-1-11.21 - 1-1-11.22 - 43-1-1 - 43-1-13 - 43-1-14 - 43-1-15 - 43-3-6 - 43-4-1 - 43-4-3 - 43-4-4 - 43-5-10 - 43-5-11

194. For this reason alone, the 507 Petition should be rejected.

195. Moreover, there are multiple parcels identified in both Exhibit A

and Exhibit C which, based on the legal metes and bounds description in Exhibit A, appear to be

incorrectly identified.

196. The following parcels were improperly identified in both Exhibit A

and Exhibit C:

- 1-2-1 - 1-2-3.3 - 59-2-1.1 - 56-1-1.1 - 56-1-1.2 - 61-1-1.1 - 61-1-1.2

35

- 62-1-1.1 - 62-1-1.2 - 63-1-1.1 - 63-1-1.2 - 65-1-27 - 65-1-5 - 65-1-6 - 66-1-1.1 - 66-1-1.2

197. Finally, S/B/L 43-1-11 was included in Exhibit A but not included

in Exhibit C.

198. The aforementioned inconsistencies render it entirely impossible to

discern the limits of the territory proposed for annexation.

199. The 507 Petition must be dismissed for failing to comply with so

much of Article 17 of the General Municipal Law as requires a complete and accurate

description of the property at issue. See N.Y. Gen. Mun. Law §§ 703(1) & 705(1)(d).

Facially Insufficient Petition Submitted For Annexation By Village of 164 Acres of Town Territory

200. Both the Town Board and the Village Board asserted their intent to

serve as Lead Agency for the review of the 507 Petition under SEQRA.

201. As a result, the DEC Commissioner was compelled to designate

which agency should serve as the Lead Agency for the 507 Petition.

202. Rather than await the DEC’s determination with respect to which

Board should serve as Lead Agency for the SEQRA review of the 507 Petition, another

annexation petition, for approximately 164 acres of land is the Town, was submitted (i.e., the

“164 Petition”).

36

203. The submission of the 164 Petition appeared to represent an effort to

usurp DEC’s lawful duty to determine the Lead Agency for the Annexation. See 6 N.Y.C.R.R. §

617.6(b)(5).

204. The interjection of the 164 Petition also appears to violate the so-

called “prior jurisdiction rule,” which holds that where a municipal annexation proceeding has

been commenced by the filing of a petition for annexation, jurisdiction to consider and determine

other annexation proceedings concerning the same territory is excluded.

205. As such, the Town Board and the Village Board lacked jurisdiction

to consider the 164 Petition until proceedings relating to the 507 Petition have been completed.

206. In any event, the 164 Petition fails to substantially comply in form

or content with multiple provisions of Article 17 of the General Municipal Law. See N.Y. Gen.

Mun. Law § 705(1)(d).

207. Again, various interested Parties, including the MWCSD, pointed

out problems with the form and content of the 164 Petition. (See June 22nd MWCSD Letter.)

Unqualified Signatures On 164 Petition

208. As with the 507 Petition, the 164 Petition is invalid because it

contains multiple unqualified, invalid signatures. See N.Y. Gen. Mun. Law § 705(1)(a).

209. As the MWCSD pointed out, like the 507 Petition, it is improbable

that all purported petitioners signed the Petition on the same date.

210. As the MWCSD also pointed out, in any event, the signatures were

not purportedly authenticated until four days later.

37

211. Moreover, there are corporate signatories which are not valid

corporations under the New York State Business Corporation Law, Not-for-Profit Corporation

Law or Religious Corporations Law.

212. Upon information and belief, Upscale 4 Homes Corp., which is the

alleged “owner of record” of S/B/L 65-1-32, is not an active (or inactive) Corporation or

Business Entity in New York State.

213. The signature of this entity should be stricken and the total assessed

valuation of the “Territory proposed to be annexed to the Village” should be reduced by the

assessed value of this parcel, i.e., $20,000.00.

214. It is also unclear what the corporate status of Bakertown Realty

Equities is, and whether it owns S/B/L 1-3-1.3.

215. According to the 2014 Final Town Assessment Roll, this parcel is

wholly owned by “AES 11-07 Trust, Elimelech Schwartz, Trustee.”

216. In the 164 Petition, however, there are two (2) entities listed below

“AES 11-07 Trust” – “Bakertown Realty Equities” and “Jacob Bandua Trust.”

217. Neither Bakertown Reality Equities, nor the Jacob Bandua Trust,

appears to own S/B/L 1-3-1.3. Their names and signatures should be stricken from the Petition.

218. Second, again, there are three (3) parcels that are jointly owned by

two (2) entities but for which only one signature was obtained: S/B/L 1-3-14.21; 1-3-15; and 1-3-

40.

219. These properties are owned by both Amazon Realty Associates,

Inc., and Burdock Realty Associates, Inc. There is only one signatory, however, signing for each

of these three (3) parcels.

38

220. It is unclear whether the signatory, Elozer Gruber, is signing on

behalf of Amazon Realty Associates, signing on behalf of Burdock Realty Associates, or

purporting to sign on behalf of both entities.

221. Without a valid signature on behalf of both property owners, these

properties cannot be included in the total assessed valuation of the “Territory proposed to be

annexed to the Village.”

222. The total valuation should be reduced by the assessed value of these

parcels, i.e., $145,300.00.

223. The 164 Petition must be dismissed for failing to obtain valid

qualified signatures.

164 Petition Does Not Describe The Territory To Be Annexed

224. The 164 Petition is invalid because it does not sufficiently describe

the territory to be annexed. See N.Y. Gen. Mun. Law §§ 703(1) & 705(1)(d).

225. First, Exhibit A to the 164 Petition, which purports to contain the

legal description of the territory to be annexed from the Town to the Village, contains the legal

description for 72 parcels.

226. Exhibit C to the 164 Petition, which purports to contain a certificate

signed by the Town Assessor responsible for preparing the 2014 Final Town Assessment Roll

and certifying that “the tax lots that petitioners affirm in the Petition that they own within the

Territory proposed to be annexed to the Village has [sic] a total assessed valuation that is a

majority of the total assessed valuation of all of the Territory described in the Petition which is

now situated in the Town and which is sought to be annexed to the Village, as shown on the

assessment roll of the Town for the year 2014,” contains 71 parcels.

39

227. Second, the legal metes and bounds description and accompanying

parcel list included in Exhibit A does not match the parcel list certified by the Assessor in

Exhibit C. S/B/L 1-2-1 is included in Exhibit A (Area III) but is not included in Exhibit C.

228. Moreover, Exhibit A lists S/B/L 61-1-1.-1 and 61-1-1.-2 (Area

VIII), while Exhibit C lists S/B/L 61-1-1.1 and 61-1-1.2.

229. The aforementioned inconsistencies render it entirely impossible to

discern the limits of the territory proposed for annexation.

230. As such, the 164 Petition, too, must be dismissed for failing to

comply with this requirement under the General Municipal Law.

The Form and Content of Both Petitions Are Flawed In Multiple Respects

231. Both Petitions must be also dismissed because they both fail to

comply with other provisions of Article 17 of the General Municipal Law. See N.Y. Gen. Mun.

Law § 705(1)(d).

232. Neither the Annexation of 164 nor 507 acres from the Town to the

Village would be in the overall public interest.

233. Either Annexation would bring high density housing, unregulated

development and legal noncompliance to the Annexation Area and will cause adverse impacts on

both the public and the environment.

The Town Board Is Advised That Annexation Would Violate Establishment Clause

234. Early in the process, by letter dated May 15, 2014, a citizens’ group,

United Monroe, advised the Town Board that the proposed annexation would violate the

Establishment Clause of the United States Constitution.

40

235. As United Monroe wrote, the United States Supreme Court made

clear in Board of Education of Kiryas Joel Village School District v. Grument, et al. (“Kiryas

Joel”), 512 U.S. 687, 114 S. Ct 2481 (1994), the government cannot draw political boundaries

based on religious criteria.

236. Stated differently, the government cannot delegate ‘important,

discretionary governmental powers’” to a political subdivision whose franchise is, in effect,

determined by a religious test.

237. In Kiryas Joel, the Supreme Court held that a New York State

legislative Act, which created a separate school district solely to serve the Village of Kiryas

Joel’s “distinctive population” (the “School Act”), violated the Establishment Clause of the First

Amendment of the United States Constitution.

238. The Supreme Court held that such action was “tantamount to an

allocation of political power on a religious criterion and neither presupposes nor requires

governmental impartiality toward religion.” 114 S. Ct. at 2485.

239. By way of background, the Establishment Clause “‘compels the

State to pursue a course of “neutrality” toward religion,’ favoring neither one religion over others

nor religious adherents collectively over nonadherents.” Id. at 2487 (citations omitted).

240. A governmental entity violates the “wholesome neutrality”

guaranteed by the Establishment Clause when its actions cause a “‘fusion of governmental and

religious functions’ by delegating ‘important, discretionary governmental powers’ to religious

bodies, thus impermissibly entangling government and religion.” Id. at 2487-88.

241. Based on this premise, the Supreme Court held that the School Act

violated the Establishment Clause, because it was “substantially equivalent to defining a political

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subdivision and hence the qualification for its franchise by a religious test, resulting in a

purposeful and forbidden ‘fusion of governmental and religious functions.’” Id. at 2490 (citation

omitted).

242. The Supreme Court noted that it was irrelevant that the School Act

generically delegated power to “residents of the ‘territory of the Village of Kiryas Joel,’” rather

than containing an “express reference to the religious belief of the Satmar community.” Id. at

2489.

243. “[T]he context here persuade[d the Court] that [the Act] effectively

identifies these recipients of governmental authority by reference to doctrinal adherence, even

though it does not do so expressly.” Id.

244. Here, the Town Board’s and the Village Board’s respective

determinations on both the 507 and the 164 Annexation Petitions unconstitutionally purported to

cede electoral territory to Kiryas Joel, which would result in a constitutionally improper

delegation of political power to the Village.

Wholly Deficient SEQRA Review

245. The DEC Commissioner arbitrarily and capriciously determined that

the Village Board should serve as the Lead Agency for the SEQRA review of the 507 Petition.

246. The Village Board’s review under SEQRA is illegitimate because

the DEC Commissioner erred in selecting the Village as Lead Agency for the review.

247. PHV has filed a pending litigation challenging DEC’s determination

in this regard.

248. It is clear that the Village has little regard for land use laws and

environmental regulations, let alone any respect for its obligations under SEQRA.

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249. This poor track record showed that the subject SEQRA review, with

the Village Board at the helm as Lead Agency, could not be trusted to adequately study the

potential significant adverse impacts of the Proposed Annexation on the environment and

community.

250. Moreover, the Village’s track record showed that the Village Board

would not give due consideration to public input in the environmental review, as SEQRA

requires.

251. Indeed, even before DEC Commissioner’s determination, the

Village’s disregard for public input in the SEQRA process was already demonstrated by its

insistence on holding its Scoping Session on the night of a major snow storm.

252. Despite numerous pleas for the Village to adjourn the Scoping

Session (such as requests from public officials including the Orange County Executive), if only

for public safety’s sake, the Village cynically proceeded with the Scoping Session.

253. The last speaker at the Scoping Session was the Highway

Superintendent for the Town of Monroe, who had to advise the public to drive with extreme

caution in light of the weather conditions, warning that “you could skid off the road in a minute.”

254. Conditions were so bad that “[i]f you ha[d] a survival kit in your car

and you [couldn’t] get out of your car,” the Highway Superintendent advised that you “please

use it.”

255. Respectfully, the SEQRA review led by the Village Board

unfortunately confirmed the Village’s intent to misuse the SEQRA process to rationalize a pre-

ordained result.

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256. There can be no better evidence of the deficient SEQRA review on

the proposed Annexation Petitions than the fact the Town’s own consultant, JMC, found both the

Draft Generic Environmental Impact Statement (“DGEIS”) and the Final Generic Environmental

Impact Statement (“FGEIS,” collectively with the DGEIS, the “GEIS”) lacking in critical

respects and said that a Supplemental Generic Environmental Impact Statement (“SGEIS”) was

required. (See Memorandum from JMC to Town Board, dated June 18, 2015, entitled

“Comments on Kiryas Joel Annexation Draft Generic Environmental Impact Statement” (“JMC

DGEIS Memo.”) & Memorandum from JMC to Town Board, dated Aug. 31, 2015, entitled

“Comments on Kiryas Joel Annexation Final Environmental Impact Statement” (“JMC FGEIS

Memo.”).

Flawed DGEIS

257. JMC, the Town Board’s consultant for review of the proposed

Annexations, found the DGEIS so flawed that it stated that an SGEIS was required.

258. JMC, for example, determined that the DGEIS was fundamentally

flawed because it limited analysis to 10 years out and that a SGEIS was required to correct this:

The Kiryas Joel Annexation DGEIS is based entirely on a 10 year projection of population growth of residents within existing Village of Kiryas Joel, which is comprised of approximately 700 acres per the DGEIS. The 10 year analysis included in the DGEIS considers only a portion of the potential future impacts. Accordingly, a supplemental DGEIS needs to be prepared to properly address the buildout potential of the entire 1,207 acres and provide the public with an opportunity to comment on the anticipated impacts associated with the proposed annexation and resulting/anticipated increase in density and population of the 507 acres of existing Town lands as well as the 164 acre alternative annexation. In order to properly evaluate the full environmental impacts associated with the proposed annexation. A timeframe for when such buildouts would occur beyond 2025 should be included.

(JMC DGEIS Memo. at 1-2.)

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259. JMC further advised that “[t]he buildout analyses need to be

conducted in order to evaluate longer-term (greater than 10 year) impacts from the associated

population growth to critical infrastructure, including but not limited to water and sanitary sewer

demands and evaluating capacities to accommodate such demands.” (Id. at 2.)

260. As described below in greater detail in the Third Cause of Action,

the DGEIS contained multiple other deficiencies, which were never cured.

Flaws In FGEIS So Serious That Town Board’s Own Consultant States That “The Proposed Annexations Cannot Be Properly Evaluated”

261. Not only did the Village Board fail to require an SGEIS, but, in fact,

it rushed out an FGEIS that simply perpetuated and sought to rationalize the flaws in the DGEIS.

262. Again, the Town Board’s own consultant, JMC, found the FGEIS

seriously deficient.

263. Indeed, JMC advised the Town Board “that the proposed

annexations cannot be properly evaluated by the Monroe Town Board and others” because of

the large gaps in its analysis, including with respect to such basic issues as buildout analysis:

The FGEIS responses do not provide the requested buildout analysis of the population increase that could be reasonably expected with the full development of the 164 and 343 acre annexation areas. We continue to believe that the proposed annexations cannot be properly evaluated by the Monroe Town Board and others without a buildout analysis reflecting the use of the entire acreages of the annexation territories and the potential populations living within the annexed properties as a result of the increased development densities anticipated. The requested buildout analysis of the future population resulting from the annexation(s) relate to the fundamental impact issues of water supply and sewage treatment capacities, schools, traffic, etc.

(JMC FGEIS Memo. at 5 (emphasis added).)

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264. JMC noted that the improperly circumscribed analysis impeded

analysis of critical issues, such as water supply:

For example, in FGEIS Response 3.5.7-3, the Applicant notes that the NYCDEP requires that all water taken from the aqueduct has back-up capacity from the groundwater sources, and the Village has secured the rights to approximately 2,419,200 gpd of additional potential water supply capacity to bring these new water sources on-line as the Village demand increases. A longer timeframe buildout analysis is necessary to assess the long-term ability of the village to obtain additional backup water sources to the aqueduct, up to a full-buildout scenario.

(Id. at 14 (emphasis added).)

265. As JMC stated, “[t]he FGEIS response does not address the

additional water supply and sanitary sewer treatment demands and capacities associated with

the buildout of the annexed territories.” (Id.)

266. JMC also called out the patent deficiency that “[t]he FGEIS

response does not recognize that existing Town land would be developed at higher densities that

currently permitted.” (Id. at 5.)

267. JMC pointed out multiple other areas of environmental concern

where the FGEIS failed to provide the necessary empirical analysis.

268. JMC also expressed deep skepticism with respect to the FGEIS’s

claim that impacts resulting from Annexation would be addressed in subsequent environmental

reviews.

269. It noted, for example, that “[a]s far as we are aware, the Village has

never required the preparation of a traffic study at the time of site specific development

applications.” (Id. at 10.)

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270. “Accordingly, it is reasonable to be skeptical of whether site

specific analyses will be conducted in the future. In our opinion, the comment is not sufficiently

addressed.” (Id.)

271. Moreover, as JMC wrote, “We find that there are gross deficiencies

in the FGEIS concerning environmental, fiscal, and social impact analyses of each annexation

alternative.”

Orange County and Others Point Out That the SEQRA Analysis “Failed to Substantively Identify and Document, Quantitatively With Logical Rationale and Reasoned Elaboration, the Full, Relevant Areas of Environmental Concern”

272. Like the Town Board’s consultant, JMC, the Orange County

Planning Department also found the analysis in the FGEIS so deficient that an SGEIS was

required.

273. The Orange County Planning Department wrote that the SEQRA

analysis “failed to substantively identify and document, quantitatively with logical rationale and

reasoned elaboration, the full, relevant areas of environmental concern, or thoroughly analyzed

the areas of environmental concern:”

Overall, it is this Department’s view that the designated SEQRA Lead Agency, the Village of Kiryas Joel Board of Trustees, has failed to substantively identify and document, quantitatively with logical rationale and reasoned elaboration, the full, relevant areas of environmental concern, or thoroughly analyzed the areas of environmental concern identified through scoping or support determinations made in the FGEIS. As such, we recommend that the FGEIS be supplemented prior to the contemplated approval of any annexation alternative based on the comments below.

(Memorandum from Orange County to Village of Kiryas Joel, dated Aug. 21, 2015, at 2.)

274. The FGEIS analysis was so deficient that the Orange County

Planning Department was compelled to note the obvious “nexus between the annexation

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proposed, subsequent rezonings, and expected land development both immediately and beyond

10 years:”

[W]e disagree that the environmental assessment can be viewed in limited way as a simple municipal boundary change- and as such more detailed analysis of inevitable, predictable and subsequent rezonings, land development, and land disturbance activities can be deferred to another review at another time. There is a nexus between the annexation proposed, subsequent rezonings, and expected land development both immediately and beyond 10 years.

(Id.)

275. Like the Town Board’s consultant, the Orange County Planning

Department stated that analysis past 10 years was needed:

[W]e continue to recommend that the analysis for the action go out beyond just 10 years. There are numerous examples, including the Village of Kiryas Joel’s own SEQRA documentation for the proposed water supply pipeline and related actions including new source waters north of the Village, where analysis necessarily and rationally exceeds a very constrained 10 year horizon.

(Id. (emphasis added).)

276. And, like the Town Board’s consultant, the Orange County Planning

Department wrote that the SEQRA review’s artificial 10 year time frame for analysis was fatally

flawed regarding the basic issue of water supply:

[W]ater supply remains a primary concern as an environmental impact; this topic remains inadequately addressed given the lack of analysis of the “inevitable” growth predicted within 10 years and beyond. We already know today that the Village of Kiryas Joel is close to being in a state of water supply emergency.

(Id.)

277. And, also like the Town Board’s consultant, JMC, the Orange

County Planning Department “continues to view the SEQRA documentation on alternatives as

inadequate.” (Id. at 3.)

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278. The Department “suggest[ed] that there are a fuller range of

alternatives without annexation as well as with annexation that can address smart growth or

managed growth scenarios that will ensure regional environmental quality.” (Id.)

Town Board’s SEQRA Findings State That Supplementation Is Required, But, Without Any Explanation, State That the Review Is Adequate For The 164 Petition

279. The Town Board’s SEQRA Findings state that the EIS is so

inadequate, including with respect to the 164 Petition, that an SGEIS “need[ed] to be prepared”:

The 10 year analysis included in the GEIS considers only a portion of the potential future impacts. Accordingly, a supplemental GEIS needs to be prepared to properly address the buildout potential of the entire 1,207 acres and provide the public with an opportunity to comment on the anticipated impacts associated with the proposed annexation and resulting/anticipated increase in density and population of the 507 acres of existing Town lands as well as the 164 acre alternative annexation.

(Town Board’s SEQRA Findings at 2 (emphasis added).)

280. Without any explanation, however, the Town Board’s SEQRA

Findings contradictorily assert that the review was adequate for the 164 Petition.

AS AND FOR A FIRST CAUSE OF ACTION (Declaratory Judgement – Town Board and Village Board

Votes in Favor of Annexation Violate the Establishment Clause of the New York State and United States Constitution)

281. Petitioners/Plaintiffs respectfully repeat and reallege the allegations

set forth in Paragraphs 1 through 280 of this Verified Petition as if fully stated herein.

282. The Town Board’s and the Village Board’s respective

determinations on both the 507 and the 164 Annexation Petitions were unconstitutional decisions

to cede electoral territory to Kiryas Joel, which would result in a constitutionally improper

delegation of political power to the Village. See Kiryas Joel, 114 S. Ct. at 2494 (holding that

49

School Act impermissibly delegated political power “to an electorate defined by common

religious belief and practice, in a manner that fails to foreclose religious favoritism”).

283. The Town Board’s and the Village Board’s determinations with

respect to the Annexation Petitions would, in the absence of judicial intervention, improperly

cause “the forced separation that occurs when the government draws political boundaries on the

basis of people’s faith.” Id. at 2505 (Kennedy, J., concurring).

284. Both the 504 and the 164 Annexations would violate the

Establishment Clause of the United State Constitution.

285. In particular, both Annexations would constitute an improper

delegation of political power based upon religious criteria.

286. The Town would be unconstitutionally ceding “important,

discretionary governmental powers’” to the Village, which the United States Supreme Court has

already recognized is a political subdivision whose franchise is determined by a religious test.

See Kiryas Joel, 114 S. Ct. 2481.

287. The Town Board was misplaced in asserting in its Annexation

Resolution that Justice O’Connor’s concurring opinion in Kiryas Joel supports the proposition

that the Board’s determination on the Annexation Petitions would not violate the Establishment

Clause.

288. In his concurring opinion, Justice Kennedy specifically noted that

the process for incorporating a Village was largely procedural, and did not necessitate any

discretionary action by the government:

We do not confront the constitutionality of the Kiryas Joel village itself, and the formation of the village appears to differ from the formation of the school district in one critical respect. As the Court notes, ante, at 2491, n. 7, the village was formed pursuant to a religion-neutral self-incorporation

50

scheme. Under New York law, a territory with at least 500 residents and not more than five square miles may be incorporated upon petition by at least 20 percent of the voting residents of that territory or by the owners of more than 50 percent of the territory's real property. N.Y. Village Law §§ 2–200, 2–202 (McKinney 1973 and Supp.1994). Aside from ensuring that the petition complies with certain procedural requirements, the supervisor of the town in which the territory is located has no discretion to reject the petition. § 2–206; see Decision on Sufficiency of Petition, in App. 8, 14 (“[T]he hollow provisions of the Village Law ... allow me only to review the procedural niceties of the petition itself”). *730 The residents of the town then vote upon the incorporation petition in a special election. N.Y. Village Law § 2–212 (McKinney 1973). By contrast, the Kiryas Joel Village School District was created by state legislation. The State of New York had complete discretion not to enact it. The State thus had a direct hand in accomplishing the religious segregation.

Id. at 2504 (emphasis added).

289. Here, the annexation process specifically required the Town Board

to make a discretionary determination as to whether the proposed annexation is in the over-all

public interest. See N.Y. Gen’l Muni. L. § 705.

290. As Justice Kennedy wrote, “There is more than a fine line, however,

between the voluntary association that leads to a political community comprised of people who

share a common religious faith, and the forced separation that occurs when the government

draws explicit political boundaries on the basis of peoples' faith.” See Kiryas Joel, 114 S. Ct. at

2504 (emphasis added).

291. Both Proposed Annexations are both invalid because they would

unconstitutional draw political boundaries based on religious considerations.

292. The Town Board Members and the Village Board Members who

voted in favor of either Annexation Petition violated the Establishment Clause.

293. The Town Board’s and the Village Board’s respective determination

in favor of the Proposed Annexation violated the Establishment Clause.

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AS AND FOR A SECOND CAUSE OF ACTION (Article 78 – Form and Content of Petitions Violate the

Establishment Clause of the New York State and United States Constitution)



295. Article 17 of the General Municipal Law must be construed in a

manner that would avoid objectionable consequences, such as unconstitutional results. See, e.g.,

Loretto v. Teleprompter Manhattan CATV Corp., 58 N.Y.2d 143, 459 N.Y.S.2d 743, 747 (1983).

296. The form and content of an annexation petition that would cause an

unconstitutional result does not substantially comply with Article 17 of the General Municipal

Law. See N.Y. Gen. Mun. Law § 705(1)(d).

297. Inasmuch as both the 507 and the 164 Petitions would cause an

unconstitutional result, they must be dismissed by virtue of such failure to comply with Article

17 of the General Municipal Law. See N.Y. Gen. Mun. Law § 705(1)(d).

AS AND FOR A THIRD CAUSE OF ACTION (Article 78 – Arbitrary and Capricious Selection of Lead Agency)



299. In determining the dispute between the Town Board and the Village

Board as to which agency should serve as the Lead Agency for the subject SEQRA review, the

DEC Commissioner was required to use the following criteria:

(a) whether the anticipated impacts of the action being considered are primarily of statewide, regional, or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency);

(b) which agency has the broadest governmental powers for

investigation of the impact(s) of the proposed action; and

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(c) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

6 N.Y.C.R.R. § 617.6(b)(5)(v).

300. In its determination that the Village Board should serve as Lead

Agency, dated January 28, 2015, the DEC Commissioner failed to rationally apply the factors

that are required by DEC’s own regulations.

301. The DEC Commissioner was aware that there were serious doubts

about the ability of the Village Board to investigate the impacts of the proposed annexation, and

its capabilities for providing the most thorough environmental assessment of the proposed

annexation, but failed to rationally address these concerns. See 6 N.Y.C.R.R. § 617.6(b)(5)(v).

302. Tellingly, the Town Board’s own consultant repeatedly found the

SEQRA review led by the Village Board to be insufficient.

303. Indeed, in its SEQRA Findings, the Town Board stated that

supplemental environmental review was required.

304. Petitioners already have a pending challenge to the DEC

Commissioner’s selection of the Village Board as Lead Agency. See Preserve Hudson Valley,

Inc., et al. v. N.Y.S. D.E.C., et al, Index No. 1015-001707 (Sup. Ct. Westchester Co.) (Connolly,

J.).

305. Respondents in that matter have asserted, inter alia, that

Petitioners/Plaintiffs’ challenge was premature.

306. Accordingly, Petitioners raise this claim herein in an excess of

caution.

307. In the event that the Court in that prior pending matter determines

that such challenge was premature, this Court should reverse, nullify, and vacate DEC’s selection

53

of the Village Board as Lead Agency for the subject SEQRA review, and the SEQRA

proceedings led by the Village Board, accordingly, should be reversed, nullified, and vacated.

AND FOR A FOURTH CAUSE OF ACTION (Article 78 – Against Town Board Violation of SEQRA)



309. “SEQRA’s fundamental policy is to inject environmental

considerations directly into governmental decision making.” Merson v. McNally, 90 N.Y.2d

742, 665 N.Y.S.2d 605, 609 (1997) (citation omitted), quoting Coca-Cola Bottling Co. of N.Y. v.

Bd. of Estimate of the City of N.Y., 72 N.Y.2d 674, 536 N.Y.S.2d 33, 35 (1988); see also

Jackson v. N.Y. State Urban Dev. Corp., 67 N.Y.2d 400, 503 N.Y.S.2d 298, 303 (1986)

(“SEQRA makes environmental protection a concern of every agency.”).

310. SEQRA’s “basic purpose” is to require agencies, such as both

Boards here, to incorporate the consideration of environmental factors into their decision making

processes. 6 N.Y.C.R.R. § 617.1(c) (“The basic purpose of SEQR is to incorporate the

consideration of environmental factors into the existing planning, review and decision-making

processes of state, regional and local government agencies at the earliest possible time.”).

311. In enacting SEQRA, the State Legislature made clear its intent that

all agencies, including the Town Board and the Village Board, “conduct their affairs with an

awareness that they are stewards of the air, water, land, and living resources,” and that they are

specifically “obligat[ed] to protect the environment for the use and enjoyment of this and all

future generations”:

It is the intent of the legislature that all agencies conduct their affairs with an awareness that they are stewards of the air, water, land, and living resources, and that they have an obligation to

54

protect the environment for the use and enjoyment of this and all future generations.

N.Y. Envtl. Conserv. Law § 8-0103(8) (emphasis added); see also 6 N.Y.C.R.R. § 617.1(b) (“In

adopting SEQR, it was the Legislature's intention that all agencies conduct their affairs with an

awareness that they are stewards of the air, water, land, and living resources, and that they have

an obligation to protect the environment for the use and enjoyment of this and all future

generations.” (emphasis added)).

312. The State Legislature further intended that all agencies, including

both Boards, must give “due consideration” to “preventing environmental damage” when

considering actions that may, like the Annexation, adversely impact the environment:

It is the intent of the legislature that all agencies which regulate activities of individuals, corporations, and public agencies which are found to affect the quality of the environment shall regulate such activities so that due consideration is given to preventing environmental damage.

N.Y. Envtl. Conserv. Law § 8-0103(9) (emphasis added).

313. The State Legislature further intended that “to the fullest extent

possible” all laws, including Article 17 of the State General Municipal Law (the “Municipal

Annexation Law”) be implemented in accordance with SEQRA’s salutary purposes. N.Y. Envtl.

Conserv. Law § 8-0103(6) (“It is the intent of the legislature that to the fullest extent possible the

policies, statutes, regulations, and ordinances of the state and its political subdivisions should be

interpreted and administered in accordance with the policies set forth in [SEQRA].” (emphasis

added)).

314. SEQRA was specifically enacted to compel agencies, such as both

Boards, to “strike a balance” between social and economic goals and legitimate concerns about

55

the environment. Jackson, 503 N.Y.S.2d at 303. Agencies, such as the Boards here, are required

to consider environmental factors together with social and economic factors:

It is the intent of the legislature that the protection and enhancement of the environment, human and community resources shall be given appropriate weight with social and economic considerations in public policy. Social, economic, and environmental factors shall be considered together in reaching decisions on proposed activities.

N.Y. Envtl. Conserv. Law § 8-0103(7); 6 N.Y.C.R.R. § 617.1(d) (“[I]t is the intention of this Part

that a suitable balance of social, economic and environmental factors be incorporated into the

planning and decision-making processes of state, regional and local agencies.”); see also

Jackson, 503 N.Y.S.2d at 303 (“In proposing action, an agency must give consideration not only

to social and economic factors, but also to protection and enhancement of the environment.”).

315. Respectfully, the subject SEQRA review evinces a willful disregard

for the State Legislature’s aforementioned goals in enacting SEQRA.

The EIS Process Is The “Heart” Of SEQRA

316. “The heart of SEQRA is the Environmental Impact Statement (EIS)

process,” which is required for any action, such as the Annexation, which “‘may have a

significant effect on the environment.’” Jackson, 503 N.Y.S.2d at 304, quoting N.Y. Envtl.

Conserv. Law § 8-0109(2); see also Akpan v. Koch, 75 N.Y.2d 561, 555 N.Y.S.2d 16, 19 (1990)

(“The primary purpose of SEQRA is ‘to inject environmental considerations directly into

governmental decision making’.” (citation omitted)).

317. The EIS process obligated both Boards to assess environmental

impacts and develop enforceable mitigation measures specifically to avoid “ecological points of

no return.” Williamsburg Around the Bridge Block Ass’n v. Giuliani, 223 A.D.2d 64, 644

N.Y.S.2d 252, 257 (1st Dept. 1996) (“The purpose of an EIS is to act as an ‘environmental

56

“alarm bell”’, the purpose of which is to alert public officials to environmental shifts before

those changes reach ‘ecological points of no return.’” (citation omitted)).

318. To that end, SEQRA mandates the preparation of an EIS when a

proposed development project “may have a significant effect on the environment” to ensure that

appropriate mitigation measures are developed:

The basic purpose of SEQR is to incorporate the consideration of environmental factors into the existing planning, review and decision-making processes of state, regional and local government agencies at the earliest possible time. To accomplish this goal, SEQR requires that all agencies determine whether the actions they directly undertake, fund or approve may have a significant impact on the environment, and, if it is determined that the action may have a significant adverse impact, prepare or request an environmental impact statement.

6 N.Y.C.R.R. § 617.1(c) (emphasis added); see also N.Y. Envtl. Conserv. Law § 8-109(1)

(affirmatively establishing that “[a]gencies shall use all practicable means to realize the policies

and goals set forth in [SEQRA] article, and shall act and choose alternatives which, consistent

with social, economic and other essential considerations, to the maximum extent practicable,

minimize or avoid adverse environmental effects, including effects revealed in the environmental

impact statement process.” (emphasis added)).

319. As the Village Board, in particular, should have been aware, Courts

will not accept inadequate environmental review, no matter how well packaged or by whom it

was performed. See Cnty. of Orange v. Vill. of Kiryas Joel, 11 Misc. 3d 1056(A), 815 N.Y.S.2d

494 (Sup. Ct. Orange Cnty. 2005) (“One cannot presume that the requisite ‘hard look’ was taken

based on the thickness of the DEIS or because the [agency’s] consultants were highly regard in

their fields.”), aff’d as modified, 44 A.D.3d 765, 844 N.Y.S.2d 57 (2d Dept. 2007).

320. As the Appellate Division, Second Department held in County of

Orange, which concerned the Village’s proposed water pipeline:

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The Village did not “fully identif[y] the nature and extent of all of the wetlands that would be disturbed or affected by the construction of the proposed water pipeline, how those wetlands would be disturbed, and how such disturbance, if any, would affect the salutary flood control, pollution absorption, groundwater recharge, and habitat functions of those wetlands;”

“[N]either the DEIS nor the FEIS fully identified the location,

nature, or extent of the bodies of surface water into which wastewater from the proposed treatment plant would be discharged, and which State classes and standards of quality and purity apply to those water bodies;”

“Nor did the DEIS or the FEIS adequately identify how much

effluent would be discharged into those bodies of water over what periods of time, what the nature of the effluent might be, and what the effect upon those bodies of water are likely to be;

“[T]he DEIS and the FEIS were [also] rendered inadequate by the

absence of a site-specific and design-specific phase 1–B archaeological study;” and

“[T]he DEIS and the FEIS provided no demographic analysis or projections with respect to the effect of the availability of a steady and stable supply of potable water on population movement into or out of the Village.” Id. at 61-62.

321. For these reasons, the Second Department held that the Village

Board of Trustees failed to take the requisite “hard look” under SEQRA. Id. at 62.

322. Neither the Town Board nor the Village Board can reasonably

expect that this similarly flawed environmental review would pass muster.

Supplementation Should Have Been Required To Provide Opportunities For The Boards And The Public To Comment Upon The Substantial Information Missing From The DGEIS

323. As the Town Board’s own consultant and many others pointed out,

where, as here, significant new information is required subsequent to the filing of a draft

environmental impact statement, an supplemental environmental impact statement (“SEIS”) is

required:

The law recognizes that in situations in which significantly new information has been discovered subsequent to the filing of a draft EIS, which new information is relevant to the environmental

58

impact of the proposed action, a supplemental EIS containing this information should be circulated to the relevant agencies so as to insure that the decision making authorities are well informed.

Horn v. Int’l Bus. Machines Corp., 110 A.D.2d 87, 493 N.Y.S.2d 184, 192 (2d Dept. 1985),

appeal denied, 67 N.Y.2d 602, 499 N.Y.S.2d 1027 (1986).

324. Of particular relevance here, the Village Board should have, as a

matter of law, subject the multiple unaddressed issues outlined herein and in the comments of

other impacted agencies and individuals to further public review:

[C]ourts have cautioned that the omission of required information from a draft EIS cannot be cured by simply including the required data in the final EIS since the abbreviated comment period for the final EIS “is not a substitute for the extended period and comprehensive procedures for public and agency scrutiny of and comment on the draft EIS.”

Id., quoting Webster Assocs. v. Town of Webster, 59 N.Y.2d 220, 228, 464 N.Y.S.2d 431

(1983).

325. As the Town Board’s own SEQRA Findings recognize, to ensure

that the Town Board and the Village Board, other impacted agencies, and the public have an

opportunity to comment on the substantial information and analysis that is missing from the

DGEIS, the Village Board should have required an SGEIS that contains this missing

information.

Irrational and Arbitrary Constraint of Analysis To 10-Years

326. As the Town Board’s own consultant, the Orange County Planning

Department, the MWCSD, and many others pointed out, the subject SEQRA review’s arbitrary

use of 2025 as the outside date for analysis is irrational.

327. “SEQRA mandates the consideration of all ‘impacts which may be

reasonably expected to result from the proposed action,” and this includes subsequent actions

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which are ‘likely to be undertaken as a result thereof.’” Schulz v. N.Y. State Dept. of Envtl.

Conservation, 200 A.D.2d 793, 606 N.Y.S.2d 459, 461 (3d Dept. 1994) (citations omitted).

328. As the Town Board’s own SEQRA Findings recognize, it was not

even possible for the Boards to consider meaningful mitigation measures without consideration

of clearly foreseeable and contemplated build-out scenarios. See Halperin v. City of New

Rochelle, 24 A.D.3d 768, 809 N.Y.S.2d 98, 105 (2d Dept. 2005) (holding agency land use

determination can only be deemed rational if they have “some objective factual basis”).

329. As the Town Board’s SEQRA Findings recognize, it was irrational

to use a ten (10)-year window for analysis where, as here, the Boards are aware that the impacts

of the Proposed Annexation would range well past that date. See Develop Don’t Destroy

(Brooklyn), Inc. v. Empire State Dev. Corp., 94 A.D.3d 508, 942 N.Y.S.2d 477, 479 (1st Dept.),

leave to appeal denied by 19 N.Y.3d 806, 950 N.Y.S.2d 104 (2012).

330. In Develop Don’t Destroy, the Court held that the respondent

agency acted arbitrarily when it based its analysis on a ten (10)-year build-out scenario despite

the fact that it was aware of a Development Agreement that provided for a significantly extended

substantial completion date, twenty-five (25) years from the study date. See id.

331. Here, both the Town Board and the Village Board were aware that

the Village was relying on growth projections for the Annexation lands through the year 2045.

332. The Village’s Updated Budget Analysis, which the Village

submitted to the State Environmental Facilities Corporation (“EFC”) in connection with the

bonding of the Aqueduct Connection Project (EFC #16906), relied on projections through the

year 2045.

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333. In particular, the Village projected that there would be 8,550 new

residential connections and 1,500 new commercial connections by the year 2045.

334. Assuming six (6) people would live in each new residence, this

contemplates the addition of 50,000 people.

335. In response to this analysis, EFC asked the Village if “the growth

projections for the Village [in the Budget Analysis could] be viewed as reasonable given that the

available space within the Village does not support the long-term projections.” (See Aqueduct

Connection Project Business Plan Supplement II, dated Jan. 31, 2014.)

336. In response, the Village advised EFC about the proposed

Annexation, and stated that “if indeed annexed into the Village, that opportunity [to rezone or

develop the subject properties] exists and would reasonably accommodate the anticipated

growth described in the Business Plan.” (Id. (emphasis added).)

337. In the same paragraph, the Village noted the maximum allowable

development under existing Town Zoning, and added that “[t]his does not account, however, for

potential rezoning for increased densities.” (Id.)4

338. As such, not only did the Village make clear to EFC that its business

model for the bonding of the aqueduct depended upon illegally increasing the allowable density

4 The Village’s representations to EFC conflict with the maxim that municipalities are not permitted to use annexation to evade current zoning constraints. See, e.g., Bd. of Trustees of Spring Valley v. Town of Ramapo, 264 A.D.2d 519, 694 N.Y.S.2d 712, 714 (2d Dept. 1999) (“Annexation may not be used as a means by which the owner of land in one municipality may escape the effect of that municipality’s local legislation by having the land transferred to an adjoining municipality.”); Bd. of Trustees, Vill. of Pomona v. Town of Ramapo, 567 N.Y.S.2d 791, 793, 171 A.D.2d 861, 863 (2d Dept. 1991) (“[T]he Village may not use annexation to subvert the development of an adjoining municipality's property pursuant to a lawfully enacted zoning ordinance.”); Vill. of Skaneateles v. Town of Skaneateles, 115 A.D.2d 282, 496 N.Y.S.2d 185, 186 (4th Dept. 1985) (“We have found no precedent approving the use of annexation as a device by which the owner of land in one municipality may escape the effect of that municipality's local legislation by having the land transferred to an adjoining municipality.”).

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of the Annexation area, but it also unambiguously signaled that this increase in density would be

sufficient to accommodate the full development projected in the Budget Analysis -- 8,550 new


339. The build-out scenarios considered in the GEIS should have

included the development projected by the Village to EFC -- i.e., 8,550 new residential

connections and 1,500 new commercial connections by the year 2045.

340. Again, assuming six (6) people living in each new household, this

could inject more than 50,000 people into the annexed areas.

341. As such, at minimum, the GEIS should have considered the adverse

impacts of this extraordinarily intense high-density development on the environment and

neighboring communities.

342. Thus, this is not a case where development after ten (10) years was

nothing more than “unsupported speculation.”

343. Instead, as established by the Village’s representations to EFC,

high-density development through 2045 is clearly foreseeable. Cf. Fisher v. Giuliani, 280

A.D.2d 13, 720 N.Y.S.2d 50, 55 (1st Dept. 2001).

344. As the Village Board implicitly recognized when it issued the

Positive Declaration requiring the instant DGEIS, this is not a situation where the environmental

review of an annexation should be limited because development objectives are unknown. Cf.

City Council of Watervliet v. Town Bd. of Colonie, 3 N.Y.3d 508, 789 N.Y.S.2d 88, 93-94

(2004).

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345. To the contrary, the Village has already represented to a State

agency that it will promote development at least through 2045 at intense levels on the territories

it would like to annex in order to fund significant infrastructure expansion.

346. As such, the environmental review should have “be[en] more

extensive” and “address the specific use of the property [that the Village laid out for EFC] in

evaluating the related environmental effects.” Id. at 94.

347. Notably, the SEQRA Findings adopted by the Village in connection

with the development of the water supply pipeline, which is the subject of the Village’s

discussion with EFC, state that “[t]he project does not involve the expansion of the Village’s

distribution system into previously undeveloped or subserviced areas but will allow the existing

Village to be served with a new source of water supply.” (Resolution Adopting Amended

Findings Statement (Mar. 31, 2009), at 4 (emphasis added).) The Findings indicate that the

pipeline was not intended to serve areas outside the Village’s present boundaries. Certainly, no

environmental review has been conducted in this regard.

348. The artificial use of 2025 as the end date for analysis, for example,

results in an artificial capping of projected development of 3,825 units. (See DGEIS at 2-7 &

3.1-15.)

349. Ultimately, the DGEIS’s use of the year 2025 as an end date for

analysis appears intended to avoid grappling with issues that would clearly arise after that date,

such as insufficient infrastructure.

350. Regardless of the motivation for using 2025 as an end date, it

improperly and irrationally constrained the analysis.

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Failure To Develop Mitigations Measures Or Thresholds For Further Analysis 351. Ultimately the subject GEIS is a meaningless document under

SEQRA.

352. It fails SEQRA’s fundamental purpose of developing legitimate

mitigation measures to address the significant adverse environmental impacts of the Proposed

Annexation.

353. Aside from all other problems affecting the vague and illegal

mitigation it ultimately purports to propose -- i.e., further environmental review by the Village

down the road -- it would be irrational for the Boards to rely on this “mitigation” because the

Village’s history provides no reasonable basis to believe that such review would ever happen.

354. At the end of the SEQRA process, both the Village Board and the

Town Board needed to certify that, inter alia, they have considered and adopted all practicable

mitigation measures. See 6 N.Y.C.R.R. § 617.11(d).

355. The GEIS’s failure to propose any meaningful mitigation measures

or thresholds for further review, however, left the Boards without any objective factual basis to

make their necessary findings. See Halperin v. City of New Rochelle, 24 A.D.3d 768, 809

N.Y.S.2d 98, 105 (2d Dept. 2005) (establishing that an agency’s land use determination can only

be deemed rational “if it has some objective factual basis”), leave to appeal denied by 6 N.Y.3d

890, 817 N.Y.S.2d 624 (Table), and by 7 N.Y.3d 708, 822 N.Y.S.2d 482 (Table) (2006).

356. “SEQRA is not merely a disclosure statute; it ‘imposes far more

‘action-forcing’ or ‘substantive’ requirements on state and local decisionmakers than [the federal

National Environmental Policy Act] imposes on their federal counterparts.” Jackson, 503

N.Y.S.2d at 303; N.Y.S. D.E.C., SEQR Handbook, at 3 (3d ed. 2010) (stating that SEQRA

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“mandates that agencies act on the substantive information produced by the environmental

review”).

357. SEQRA’s “action forcing” requirement “can lead to project denial if

the adverse impacts are overriding and adequate mitigation or alternatives are not available.”

SEQR Handbook, at 3.

358. Courts will vacate agencies’ SEQRA review where “the

municipality has opted for maximum development of the land area involved without proposing

any substantively salutary mitigating measures which would minimize the adverse environmental

effect of its decision.” Save the Pine Bush, Inc. v. Planning Bd. of Albany, 130 A.D.2d 1, 518

N.Y.S.2d 466, 468 (3d Dept. 1987) (emphasis added), leave to appeal denied by 70 N.Y.2d 610,

522 N.Y.S.2d 111 (1987).

359. The Boards should not have taken action that sets the stage for

maximum development of the territories at issue without proposing mitigation measures.

360. In addition to all of the other flaws in the GEIS’s Land Use and

Zoning Section, for example, the only apparent mitigation measure offered is that it “anticpate[s]

that the Village of Kiryas Joel will establish a master plan committee to study opportunities and

constraints of the 507 acres as it relates to the Village goals for its existing and future residents,

and make specific recommendations for future land use decisions.” (See DGEIS at 3.1-18.)

361. Given the Village’s historical and demonstrable poor track record of

land use and environmental compliance, the notion that the Village would form a “committee”

that would establish a reasonable framework for development in the Annexation territories is

irrational and reliance on that notion is arbitrary and capricious.

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362. The notion that the Village would form a viable “committee” to

establish a reasonable framework for development in the Annexation territories is particularly

irrational in light of the fact that Village’s serial violation of basic municipal planning and

zoning requirements, including that the Village’s Planning and Zoning Board members do not

satisfy the State-required training programs;

363. Moreover, deferring the development of mitigation measures to an

indefinite time where it would be addressed by an unknown “committee” violates SEQRA on

multiple grounds.

364. First, it is axiomatic that by “deferring resolution” of potential

environmental issues until after the conclusion of the SEQRA process, an agency “fail[s] to take

the requisite hard look at [] area[s] of environmental concern.” Penfield Panorama Area Cmty.,

Inc. v. Town of Penfield Planning Bd., 253 A.D.2d 342, 688 N.Y.S.2d 848, 854 (4th Dept. 1999)

(annulling Planning Board’s approval for, inter alia, deferring resolution of hazardous waste

remediation issue); see also Silvercup Studios, Inc. v. Power Auth. of N.Y., 285 A.D.2d 598, 729

N.Y.S.2d 47 (2d Dept. 2001).

365. As stated in a seminal SEQRA Decision, H.O.M.E.S. v. N.Y. State

Urban Dev. Corp., agencies, like the Boards, simply cannot “[l]ike the proverbial ostrich . . . put

out of sight and mind a clear environmental problem.” 69 A.D.2d 222, 418 N.Y.S.2d 827, 831-

32 (4th Dept. 1979) (finding that the agency failed to take “hard look” where it “vaguely

recognized” the existence of potential adverse environmental impacts, but, in an “Alice-In-

Wonderland manner,” simply “relied upon general assurances that after the problems developed

[other entities] would adequately mitigate them by some unspecified action”).

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366. Second, the analysis and development of meaningful mitigation

measures to address the adverse impacts of the Proposed Annexation on Land Use and Zoning

(as well as all other areas of environmental concern) cannot be delegated to another municipal

agency or entity, such as the unknown “committee” referred to in the DGEIS. See Coca-Cola

Bottling Co. of N.Y. v. Bd. of Estimate of City of N.Y., 72 N.Y.2d 674, 536 N.Y.S.2d 33, 37

(1988) (holding that an agency responsible for reviewing environmental impacts of an action

under SEQRA cannot delegate its review responsibilities to another agency; final determination

of relevant issues must remain with the agencies charged with evaluating them under SEQRA).

367. The GEIS should have proposed mitigation measures for the

Proposed Annexation’s adverse impacts on Land Use and Zoning (and other areas of

environmental concern), for the Boards to consider.

368. Similarly, the public has a right to comment on mitigation measures

proposed to address the adverse impacts caused by the Proposed Annexation on Land Use and

Zoning (as well as all other areas of environmental concern).

369. The Court of Appeals has affirmed that “mitigation measures of

undisputed importance [cannot] escape” public comment and agency review under SEQRA.

Bronx Comm. for Toxic Free Sch. v. N.Y. City Sch. Const. Auth., 20 N.Y.3d 148, 958 N.Y.S.2d

65, 69 (2012).

370. In Bronx Committee, the Court of Appeals held that an agency erred

in postponing detailed consideration of long-term maintenance and monitoring measures relating

to a proposed school project on a contaminated site.

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371. Similarly, here, the Boards cannot defer consideration of concrete

mitigation measures needed to address the clearly foreseeable significant adverse environmental

impacts posed by the Proposed Annexation.

372. The GEIS should have considered if the problem of unregulated

development could best be avoided by rejecting the Proposed Annexation.

373. The GEIS should have considered whether the environment,

including the human environment, would be best protected by maintaining the Town’s

stewardship over the territories at issue.

374. The GEIS should have considered if the adverse impacts could be

avoided by abiding by the currently existing zoning in the Town.

375. The GEIS should have considered clear and enforceable thresholds

for future project specific reviews.

376. The GEIS should have considered at what point development in the

territories at issue would outpace the capacity of the environment. See N.Y. Envtl. Conserv.

Law § 8-0103(5).

377. The GEIS should have considered at what point development in the

territories at issue will surpass the capacity to provide water for it.

378. The GEIS should also have addressed the capacity of the impacted

environment, including water services and the Ramapo River, to handle development.

379. The GEIS should have developed enforceable mitigation measures

related to those critical thresholds.

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380. The GEIS should have considered an enforceable monitoring

program to ensure that critical thresholds related to development, including sewer and water, are

not surpassed.

381. The GEIS should have addressed how any thresholds identified in it

would be enforced or could be relied upon in light of the Village’s extremely faulty history of

environmental and land use compliance and enforcement.

382. The GEIS should have addressed what thresholds were needed to

meet SEQRA’s policy of “[p]romoting patterns of development” that “minimize adverse impact

on the environment.” See N.Y. Envtl. Conserv. Law § 8-0101(3)(c).

383. Similarly, the GEIS should have considered phased development, to

tie development to environmental “points of no return,” an enforceable monitoring program, and

other critical means for avoiding and reducing environmental impacts.

384. In enacting SEQRA, the State Legislature specifically recognized

that the “capacity of the environment is limited,” and that agencies implementing SEQRA must

“identify any critical thresholds for the health and safety of the people of the state and take all

coordinated actions necessary to prevent such thresholds from being reached:”

The capacity of the environment is limited, and it is the intent of the legislature that the government of the state take immediate steps to identify any critical thresholds for the health and safety of the people of the state and take all coordinated actions necessary to prevent such thresholds from being reached.

N.Y. Envtl. Conserv. Law § 8-0103(5) (emphasis added).

385. Thus, SEQRA requires agencies, such as both Boards, to adopt

mitigation measures to prevent critical thresholds (or environmental “points of no return”) from

being surpassed.

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386. Thus, SEQRA specifically requires that GEISs consider, among

other things, “[t]hresholds and conditions that would trigger the need for supplemental

determinations of significance or site-specific EISs.” SEQR Handbook, at 146; see also 6

N.Y.C.R.R. § 617.10(c) (providing that GEISs and their findings must “set forth conditions or

criteria under which future actions will be undertaken or approved, including requirements for

any subsequent SEQR compliance. This may include thresholds and criteria for supplemental

EISs to reflect specific significant impacts, such as site specific impacts, that were not adequately

addressed or analyzed in the generic EIS”).

387. DEC specifically states that “[t]he generic EIS should identify upper

limits of acceptable growth inducement in order to provide guidance to the decision maker.”

SEQR Handbook, at 147 (emphasis added).

388. The Town Board and the Village Board, however. failed to establish

concrete mitigation measures for the significant adverse impacts that are likely to result from the

Annexation.

389. The Town Board and the Village Board irrationally failed to assess

how many units could reasonably be developed in the territories proposed for annexation in light

of recognized environmental constraints, including sewer and water capacities. See N.Y. Envtl.

Conserv. Law § 8-0103(5).

390. The Town Board and the Village Board relied on the illusory

premise that, after Annexation, the Village would conduct SEQRA review on a case-by-case

basis.

391. This premise is irrational because the Village has historically

avoided compliance with land use and environmental laws, including SEQRA.

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392. Moreover, it fails to assess the critical thresholds at issue here or

discuss what the capacity of the affected environment is.

393. The GEIS should have discussed what actions are required to

prevent critical thresholds related to development in the territories at issue from being reached.

Failure To Rationally Address Village’s Systemic Disregard For Environmental Review And Land Use Laws 394. As set forth in the Administrative Record, including in submissions

provided by United Monroe, the Village has demonstrated a routine failure to comply with

SEQRA, failure to satisfy local planning and zoning requirements, and repeated violation of

federal and state environmental laws.

395. The Town Board and the Village Board, however, failed to identify,

much less take seriously, the environmental implications of the Village’s historic record of

environmental and land use noncompliance.

396. Absent a functioning planning process, future development under

the Village’s jurisdiction will continue to proceed without limitation or concern for the

environment, the surrounding community, much less the residents of the Village itself.

397. The Village’s systemic failure to enforce environmental

requirements causes adverse impacts.

398. The Town Board’s and the Village Board’s failure to address the

Village’s pattern of noncompliance with established planning, zoning and environmental laws,

regulations, and practices, or to discuss the potential adverse environmental impacts that may

flow from the Village’s consistent disregard for legally mandated requirements, was irrational.

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399. This error is particularly egregious because the only so-called

mitigations discussed in the GEIS depend upon the Village’s prospective adherence to land use

and environmental requirements.

400. The SEQRA review was inadequate to fulfill its intended function

of guiding the Town Board’s and the Village Board’s consideration of whether Annexation is in

the over-all public interest pursuant to Article 17 of the General Municipal Law..

401. The Town Board and the Village Board rationally should have

considered how the over-all public interest would be affected if, as can be reasonably anticipated,

the Village’s poor track record of compliance with fundamental land use, zoning, and

environmental laws, and the attendant unregulated development, were broadcast to a larger area

as the result of Annexation.

402. The Town Board and the Village Board, however, both audaciously

ignored this critical issue.

403. The Boards should have considered the potential significant adverse

environmental impacts that unregulated, high-density development in the Annexation territories

would have on residents of the Village and of the remaining Town. See N.Y. Gen. Mun. Law §

711(1) (requiring that Boards entertaining annexation petitions consider, inter alia, potential

effects on “the territory proposed to be annexed” as well as “the remaining area of the local

government or governments in which the territory is situated”).

404. The Village’s lack of functioning planning and zoning processes,

and its disinclination to abide by State-mandated environmental review processes, would

significantly adversely impact residents of both the Village and the Town, as well as neighboring

municipalities.

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405. Stormwater management during and after construction, for example,

is just one area where the Village’s environmental mismanagement could adversely impact

residents of neighboring municipalities.

406. Absent the Village’s implementation of basic, require stormwater

controls, mismanaged runoff from increased impervious surfaces in the Annexation area could

negatively impact neighboring properties in Monroe, causing flooding, damaging water quality

and affecting other natural resources.

407. The Town Board and the Village Board’s failure to consider that the

Village’s poor track record of complying with any legal requirements is arbitrary and irrational.

408. Because of their failure to address the Village’s proven record of

environmental noncompliance, both Boards lacked the substantial evidence they each needed to

issue defensible SEQRA Findings, see 6 N.Y.C.R.R. § 617.11, as well as to assess whether the

Proposed Annexation is in the overall public interest. See N.Y. Gen. Mun. Law § 711.

Irrational Consideration of Water Impacts

409. The use of an outside date of 2025 in the subject SEQRA analysis

was particularly inapt with respect to potential water usage.

410. The GEIS failed to address how the Village would provide adequate

water for Village residents past 2025.

411. Indeed, the DGEIS actually indicated that the Village would outstrip

available water capacity before 2025.

412. The GEIS failed to discuss what coordinated actions are necessary

to prevent development in the territories at issue from surpassing the capacity of the environment

to supply water. See N.Y. Envtl. Conserv. Law § 8-0103(5).

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413. The GEIS should have set forth what the Village’s anticipated water

demand past 2025 and through 2045 would be, with and without the Proposed Annexation, using

a reasonable worst case scenario. See Chinese Staff & Workers Ass’n v. City of New York, 68

N.Y.2d 359, 509 N.Y.S.2d 499, 503 (1986).

414. The GEIS should have specifically identify upper limits of

acceptable growth with the 2.54 mgd limitation stated in the DGEIS in mind. See SEQR

Handbook, at 147.

415. The DGEIS conceded that “extending water service to land outside

the Village is a discretionary action of the Village,” such that the Village could “extend water

service to land outside the Village on a case by case basis.” (DGEIS at 3.5-11.)

416. The GEIS should have explained if, without the Annexation, growth

could be accommodated using the Village’s water services.

417. The GEIS failed to consider rational mitigation measures for the

Proposed Annexation’s potential significant adverse impacts on water. See Save the Pine Bush,

Inc., 518 N.Y.S.2d at 468 (rejecting SEQRA review where “the municipality has opted for

maximum development of the land area involved without proposing any substantively salutary

mitigating measures which would minimize the adverse environmental effect of its decision”

(emphasis added)).

418. Ultimately, the Town Board and the Village Board erred because

they failed to assess the level of development that could reasonably be supported given the

limitations on available water. See N.Y. Envtl. Conserv. Law § 8-0103(5).

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419. Each Board should have addressed patterns of development that

would avoid overstretching the available water supply. See N.Y. Envtl. Conserv. Law § 8-

0101(3)(c).

420. The Boards’ respective SEQRA analysis should have resulted in

concrete mitigation measures to address significant adverse impacts posed by the Proposed

Annexation, and to prevent the area from reaching an ecological point of no return. See

Williamsburg Around the Bridge Block Ass’n, 644 N.Y.S.2d at 257.

421. The Boards, for example, should have considered clear and

enforceable thresholds for future project specific reviews and monitoring programs. See SEQR

Handbook, at 147. This discussion should have included the merit of phased development tied to

any such thresholds or monitoring programs. See id.

Irrational Consideration of Impacts On Community Character

422. A rational discussion of visual impacts and community character is

crucial to the analysis under the State Municipal Annexation Law as to whether the proposed

annexation is “in the over-all public interest.” See N.Y. Gen. Mun. Law § 711.

423. As the Court of Appeals has held, SEQRA analysis is not limited to

the physical impacts of a proposed action. Chinese Staff & Workers Ass’n v. City of New York,

68 N.Y.2d 359, 509 N.Y.S.2d 499, 503 (1986).

424. It is well-settled that the environmental concerns covered by

SEQRA include socio-economic concerns and impact on existing community character. N.Y.

Envtl. Conserv. Law § 8-0105(6) (defining “environment” as “physical conditions which will be

affected by a proposed action, including . . . existing patterns of population concentration,

75

distribution, or growth, and existing community or neighborhood character” (emphasis added)).

As the Court of Appeals has held:

[T]he impact that a project may have on population patterns or existing community character, with or without a separate impacts on the physical environment, is a relevant concern in an environmental analysis since the [SEQRA] statute includes these concerns as elements of the environment.

Chinese Staff, 509 N.Y.S.2d at 503.

425. This includes “the potential displacement of local residents and

businesses,” regardless of whether the Proposed Annexation may effect these impacts primarily

or secondarily or in the short terms or in the long term. Id. at 503-04.

426. It is also well-settled law that the environmental concerns covered

by SEQRA include aesthetics and visual impacts. See, e.g., WEOK Broad. Corp. v. Planning

Bd. of Lloyd, 79 N.Y.2d 373, 583 N.Y.S.2d 170, 176 (1992) (indicating that consideration of

“negative aesthetic impacts,” such as the visual effect of radio transmission towers on the local

community, can be an important factor in SEQRA review and can constitute a sufficient basis

upon which to base SEQRA determinations); Scenic Hudson v. Town of Fishkill Town Bd., 258

A.D.2d 654, 685 N.Y.S.2d 777, 780 (2d Dept. 1999) (annulling Town Board rezoning, and

indicating that EIS should have been prepared where proposed action would have a “significant

negative impact on the region’s visual environment,” air quality and public health and safety,

among other things).

427. Here, the Town Board and the Village Board did not fully consider

the impacts that the proposed Annexation, as well as each potential development scenario, would

have on the character of the adjoining communities. (See DGEIS at 3.7-3 (concluding that

“future development could disturb virtually all of the developable land in some fashion”).)

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428. Their analyses should have included potential impacts on existing

patterns of population concentration, distribution, or growth. See N.Y. Envtl. Conserv. Law § 8-

0105(6).

429. The respective Boards’ analyses should have considered the

consequences of converting rural land to high density development.

430. The respective Boards should have considered the potential

displacement of Town residents, including displacement resulting from declining home values.

431. Both Boards should have addressed the aesthetic and visual impacts

of the Proposed Annexation to surrounding communities in both the Town and the Village.

432. Mitigation measures should have been proposed to limit any

potential adverse impacts on visual resources, including scenic views.

Irrational Consideration Of Impacts On Monroe-Woodbury Central School District 433. A rational discussion of the impacts of Annexation on public

education is crucial to the analysis under the Municipal Annexation Law as to whether the

proposed annexation is in the over-all public interest.

434. The Town Board and the Village Board did not fully consider the

impacts that the proposed Annexation would have on the MWCSD.

435. The MWCSD, in its June 22nd Letter, concluded that “The Proposed

Petitions for Annexation are not in the Overall Best Interest of the Monroe-Woodbury Central

School District.”

436. The MWCSD identified multiple serious errors and omissions,

which were later ignored or dismissed without analysis in the FGEIS, the Town Board, and the

Village Board:

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“MWCSD notes that 10 years is an artificial time frame on which to base the analysis of the impacts.”

“[N]otably absent is any documentation on the amount of private or public school classroom space needed to accommodate the growth, timelines for proposed construction, recitation of what is currently being constructed, the cost of such construction, the impact to the tax base of the construction or any other of the myriad impacts that result from such and should be factored into the impacts.”

Referring to the DGEIS’s use of $1,700 as the cost of support services per

pupil it would be obligated to provide, it wrote: “The actual number for the cost of services during the 2014-15 school year is $2,986.”

“In addition, MWCSD provides education services for special needs

students. Again, the DGEIS failed to verify the costs associated with determining the fiscal impact of the annexation on the District.” The MWCSD went on to point out that the average cost is “$89,000 per student,” not “$79,000 as asserted in the DGEIS.”

“[T]he analysis applied to determine future public school taxes in the

DGEIS is misleading. [It] does not accurately reflect the manner in calculating taxes and as illustrated represents an artificial windfall to MWCSD.”

“Of significant concern, the MWCSD may experience a decrease in state

aid due to the increased housing.”

437. The MWCSD expressed its concern over the potential impact either

Annexation might have on the Kiryas Joel Union Free School District (“KJUFSD”), stating that

certain State Education Law (which is, in any event, of dubious constitutionality) provides

authority to the Village to create its own school district with boundaries that are coterminous

with that of the Village.

438. Should either Annexation occur, the MWCSD explained that the

school district and the Village would no longer be coterminous, perhaps threatening the very

existence of the KJUFSD due to non-compliance with the law.

78

439. The MWCSD also addressed the prospect of a boundary change as

had been proposed, pointing out that the impacts of such an action have not been researched or

determined so the annexations must be analyzed “without the spector of such.”

440. The MWCSD pointed out that the “factors to be considered …are

the educational interests of the students involved, the effect of the transfer on the tax revenues of

the districts involved and the effect of the transfer on the educational programs of the school

from which the property is transferred.

441. The MWCSD commented that the successful completion of a

boundary change – should MWCSD support it after the impacts have been determined – is far

from certain: “[B]oundary changes are limited by law and the unpredictable decisions of

government officials and it cannot be relied on as a panacea to address these impacts.”

442. An alteration of the KJUFSD could possibly engender a challenge to

its legality much like the three successful ones that arose after its original creation.

443. A successful legal challenge to that school district for any reason

could put the Village back into the MWCSD, potentially creating a dysfunctional situation like

that in East Ramapo.

444. The Town Board’s SEQRA Findings state that the EIS is so

inadequate, including with respect to the 164 Petition, that an SGEIS is required.

445. There was no rational basis for the Town Board SEQRA Findings to

inconsistently assert that the GEIS review was adequate for the 164 Petition.

79

AND FOR A FIFTH CAUSE OF ACTION (Article 78 – Against Village Board - Violation of SEQRA)



447. The Village Board’s SEQRA Findings are flawed in multiple

respects, including their arbitrary and irrational use of 2025 as the outside date for impacts

analysis.

448. As the Town Board’s consultant, the Orange County Planning

Department, and many others pointed out, the subject SEQRA review was fundamentally flawed

because it limited analysis to 10 years out – to end impacts analysis at 2025.

449. The Village itself, however, submitted projections to the State

Environmental Facilities Corporation for incredibly high density development through 2045,

which, in the absence of rational mitigation measures, will cause unsustainable impacts on water,

sewer, and many other areas of environmental concern.

AS AND FOR A SIXTH CAUSE OF ACTION (Article 78 – Improper Use of Annexation to Upzone)



451. Again, Article 17 of the General Municipal Law must also be

construed in a manner that would avoid objectionable consequences, such as mischievous or

disastrous consequences. See, e.g., N.Y. Stat. § 148.

452. Inasmuch as the Petitions are being advanced with the aim of

improperly rezoning the land at issue, they must be dismissed by virtue of such failure to comply

with Article 17 of the General Municipal Law. See N.Y. Gen. Mun. Law § 705(1)(d).

80

453. The subject Petitions also constitute an improper effort to avoid

complying with the Town’s current zoning because the goal of the Proposed Annexations is to

rezone the subject land to allow high density housing.

454. It is axiomatic that municipalities are not permitted to use

annexation to evade current zoning constraints. See, e.g., Bd. of Trustees of Spring Valley v.

Town of Ramapo, 264 A.D.2d 519, 694 N.Y.S.2d 712, 714 (2d Dept. 1999) (“Annexation may

not be used as a means by which the owner of land in one municipality may escape the effect of

that municipality’s local legislation by having the land transferred to an adjoining

municipality.”); Bd. of Trustees, Vill. of Pomona v. Town of Ramapo, 567 N.Y.S.2d 791, 793,

171 A.D.2d 861, 863 (2d Dept. 1991) (“[T]he Village may not use annexation to subvert the

development of an adjoining municipality's property pursuant to a lawfully enacted zoning

ordinance.”); Vill. of Skaneateles v. Town of Skaneateles, 115 A.D.2d 282, 496 N.Y.S.2d 185,

186 (4th Dept. 1985) (“We have found no precedent approving the use of annexation as a device

by which the owner of land in one municipality may escape the effect of that municipality's local

legislation by having the land transferred to an adjoining municipality.”).

455. Here, it is clear that if either Annexation were allowed, the Village

intends to change the zoning applicable to the lands at issue to allow for high density

development in the Annexation Area.

456. According to the Village’s Updated Budget Analysis that the

Village submitted to the State Environmental Facilities Corporation (“EFC”) in connection with

the bonding of the Aqueduct Connection Project (EFC #16906), the Village projected that there

would be 8,550 new residential connections and 1,500 new commercial connections by the year

2045.

81

457. Assuming six (6) people would live in each new residence, this

contemplates the addition of 50,000 people.

458. In response to this analysis, EFC asked if “the growth projections

for the Village [in the Budget Analysis could] be viewed as reasonable given that the available

space within the Village does not support the long-term projections.” (See Aqueduct Connection

Project Business Plan Supplement II, dated Jan. 31, 2014) In response, the Village advised EFC

about the proposed Annexation, and stated that “if indeed annexed into the Village, that

opportunity [to rezone or develop the subject properties] exists and would reasonably

accommodate the anticipated growth described in the Business Plan.” (Id. (emphasis added).)

459. In the same paragraph, the Village noted the maximum allowable

development under existing Town Zoning, and added that “[t]his does not account, however, for

potential rezoning for increased densities.” (Id.)

460. As such, not only did the Village make clear to EFC that its business

model for the bonding of the aqueduct depended upon increasing the allowable density of the

Annexation Area, but it also unambiguously signaled that this increase in density would be

sufficient to accommodate the full development projected in the Budget Analysis -- 8,550 new


461. The Village’s representations to EFC obviously conflict with the

maxim that municipalities are not permitted to use annexation to evade current zoning

constraints. See, e.g., Bd. of Trustees of Spring Valley, 694 N.Y.S.2d at 714.

462. The DGEIS recognized that the Village harbors the improper intent,

if either of the Proposed Annexations were approved, of changing the zoning in the land at issue

to substantially increase density. (See DGEIS at 3.1-16 (“With annexation, the DGEIS assumes

82

the parcels proposed to be annexed to the Village of Kiryas Joel will be developed pursuant to

the Village zoning to accommodate a greater portion of the projected growth demands of the

community to the year 2025.”).)

463. The DGEIS concedes that the Village has no effective zoning

regulations.

464. The very first page of the DGEIS states that “[t]here is no maximum

density (units per acre) provision in the [Village] code.” (DGEIS at 1-1.)

465. This means that development can take place in the Village virtually

without limitation.

466. Moreover, the Village has no legitimate planning process to

implement reasonable density restrictions, even if they existed.

467. The Village’s lack of any density regulation, when understood in

conjunction with the Village’s serial disregard for land use laws and SEQRA, enables

development without any regard for its impact on the public health, safety, or general welfare.

Annexation lawfully cannot be used to avoid the Town’s lawfully enacted zoning laws,

particularly where, as here, it is intended to allow unfettered development, without mitigation.

468. The Town Board in its Annexation Resolution brazenly recognizes

“that zoning restriction avoidance might have been a motivating factor in petitioning for

annexation.” (Town Board’s Annexation Resolution at 15.)

469. The Town Board in its Annexation Resolution, however, irrationally

concluded that the fact that avoiding zoning restriction “might have been a motivating factor in

petitioning for annexation, [this] does not prohibit approval of the annexation.” (Town Board’s

Annexation Resolution at 15.)

83

470. The caselaw disallowing annexation petitions that are intended to

escape existing zoning legislation allows for no exceptions. See Bd. of Trustees of Spring

Valley, 694 N.Y.S.2d at 714; Bd. of Trustees, Vill. of Pomona, 567 N.Y.S.2d at 793; Vill. of

Skaneateles, 496 N.Y.S.2d at 186.

471. The Town Board’s claim that “[t]he primary purpose of the

annexation, as represented by the petitioners, is to gain access to improved local government

services” is pretextual and otherwise arbitrary and capricious. The goal of the Proposed

Annexations

472. The Annexation Petitions’ intent to avoid the Town’s current zoning

requirements is not in the overall public interest.

473. Because the Petitions are improperly intended to escape the effect of

the Town’s duly adopted zoning legislation, the Petitions fail to comply with Article 17 of the

General Municipal Law. See N.Y. Gen. Mun. Law § 705(1)(d).

AND FOR A SEVENTH CAUSE OF ACTION (Article 78 – Improper Creation of Baroque Boundaries)



475. The 507 Petition would improperly result in a highly irregular,

jagged border between the Town and the Village.

476. New York Courts have repeatedly “condemned such ‘baroque’

annexations which result in ‘irregular and jagged indentations of the boundaries between the

municipalities.’” See, e.g., Common Council of Middletown v. Town Bd. of Wallkill, 143

A.D.2d 215, 532 N.Y.S.2d 17, 19 (2d Dept. 1988) (multiple citations omitted).

84

477. As the DGEIS recognizes, however, annexation “would result in a

number of parcels remaining in the Town of Monroe but surrounded by annexed land.” (DGEIS

at 3.1-17.)

478. In addition to improperly creating baroque boundaries, the

Annexation would significantly harm the unity of community of the Town residents left behind

in this isolated “island.”

479. For this reason alone, the 507 Petition’s form and content fails to

comply with Article 17 of the General Municipal Law. See N.Y. Gen. Mun. Law § 705(1)(d).

480. The Petitions are also not in the overall public interest for this

reason.

AS AND FOR AN EIGHTH CAUSE OF ACTION (Article 78 – Improper Form and Content of Petitions –

Violation of Town Ethics Code)



482. Article 17 of the General Municipal Law must also be construed in a

manner that would avoid objectionable consequences, such as mischievous or disastrous

consequences. See, e.g., N.Y. Stat. § 148.

483. Inasmuch as approving the Petitions caused Town Board Members

to violate the Town Code’s Standard of Ethics, they must be dismissed by virtue of such failure

to comply with Article 17 of the General Municipal Law. See N.Y. Gen. Mun. Law § 705(1)(d).

484. The Town Code’s Standard of Ethics establishes that no “Town

Boardmember or Town employee of the Town or of any service or other organization chartered

by or directly or indirectly sponsored or supported by the Town” can “[d]iscriminate or cause

85

voluntary segregation, directly or indirectly, based upon creed, color, national origin, sex, sexual

preference or disability.” (Monroe Town Code § 4-4(J)(1).)

485. As such, any action by any Town Board Member(s) that promotes

the “voluntary segregation” of members of a particular religious group would, accordingly,

appear to violate the Town’s Code of Ethics and would expose such Member(s) to the full range

of Disciplinary Action contemplated by the Town Code. (See Monroe Town Code § 4-9(B)

(“Any Town officer, Town Boardmember, Town consultant or Town employee who engages in

any action that violates any provision of this code may be warned or reprimanded or suspended

or removed from office or employment by the Town Board, pursuant to the provisions of this

code, applicable law or by the person or body authorized by law to impose such sanctions.”).)

486. As the United States Supreme Court has held, “[i]t is undisputed

that those who [initially] negotiated the Village [of Kiryas Joel’s] boundaries when applying the

general village incorporation statute drew them so as to exclude all but Satmars.” Kiryas Joel,

114 S. Ct. at 2489.

487. The Monroe Town Code specifically establishes that causing

“voluntary segregation” is not in the public interest.

488. The legislative intent to avoid voluntary segregation is so strong that

the Town Code establishes that it is an ethical violation for any Town Board Member(s) to act in

any way that causes voluntary segregation.

489. Thus, the Town Code clearly establishes that causing voluntary

segregation, such as is the specific intent of the Petitions, is not in the overall public interest.

490. The Petitions’ form and content violate the General Municipal Law

because they would violate the Town Code and otherwise cause objectionable results.

86

491. As such, the Petitions fail to comply with Article 17 of the General

Municipal Law. See N.Y. Gen. Mun. Law § 705(1)(d).

492. For the same reason, the Petitions are not in the public interest.

AND FOR A NINTH CAUSE OF ACTION (Article 78 –Insufficiency of 507 Petition)



494. The 507 Petition contains insufficient signatures.

495. The 507 Petition lacks a clear description of the territory proposed

for Annexation.

496. As such, the 507 Petition must be dismissed by virtue of such failure


497. The Town Board irrationally and illegally processed the 507

Petition.

498. The Village Board irrationally and illegally processed the 507

Petition.

AS AND FOR A TENTH CAUSE OF ACTION (Article 78 – Insufficiency of 164 Petition)



500. The 164 Petition contains insufficient signatures.

501. The 164 Petition lacks a clear description of the territory proposed

for Annexation.

87

502. As such, the 164 Petition must be dismissed by virtue of such failure


503. The Town Board irrationally and illegally processed the 164

Petition.

504. The Village Board irrationally and illegally processed the 164

Petition.

AS AND FOR AN ELEVENTH CAUSE OF ACTION (Article 78 – 164 Petition Violates Prior Pending Jurisdiction Rule)



506. The interjection of the 164 Petition appears to violate the so-called

“prior jurisdiction rule,” which holds that once the municipal annexation process has commenced

by the filing of a petition for annexation, the affected municipalities shall have exclusive

jurisdiction over any annexation of the territory at issue until the annexation process is finally

concluded.

507. The Prior Jurisdiction Rule establishes that where there in a prior

proceeding concerning certain territory pending, jurisdiction to consider and determine other

proceedings concerning the same territory is excluded. In re Commandeer Realty Assocs., Inc,

et al v. Allegro, et al, Index No. 923/2015, slip op. at 16 (Sup. Ct. Orange Co. Aug. 18, 2015)

(Decision, Order & Judgment) (Connolly, J.) (“’[T]he first of two or more annexation

proceedings prevails over those subsequently commenced relating to the same territory’”),

quoting 2 McQuillin, The Law of Municipal Corporations § 7:39.1 (3d ed. 2015).

88

508. Under this Rule, once the 507 Petition was initiated, no other

Annexation Petition concerning the same territory could be initiated until the 507 Petition

process was concluded.

509. Accordingly, the Town Board and the Village Board lacked

jurisdiction to consider the 164 Petition because the 507 Petition was still pending.

510. The Town Board’ and the Village Board’s processing of the 164

Petition was ultra vires.

WHEREFORE, Petitioners/Plaintiffs respectfully demand Judgment and an

Order, as follows:

Annulling and vacating the Town Board’s SEQRA Findings;

Annulling and vacating the Town Board’s Annexation Resolution;

Annulling and vacating the Village Board’s 164 Resolution;

Annulling and vacating the Village Board’s 507 Resolution;

Annulling and vacating the Village Board’s SEQRA Findings;

Annulling and vacating the Village Board’s Annexation Findings;

Annulling and vacating the DEC Commissioner’s selection of the Village Board as the Lead Agency for the subject SEQRA review;

Awarding Petitioners/Plaintiffs the costs and disbursements of this action; Awarding Petitioners/Plaintiffs attorney’s fees in a sum to be determined

by the Court; and

89

Granting Petitioners/Plaintiffs such other and further relief as this Court deems just and proper. Dated: October 5, 2015 White Plains, New York

ZARIN & STEINMETZ By: _____________________ Daniel M. Richmond, Esq. Attorneys for Petitioners/Plaintiffs Preserve Hudson Valley, John Allegro and Louis Cerqua 81 Main Street, Suite 415 White Plains, NY 10601 (914) 682-7800

preserve hudson valley suit - kj annexation

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