Opinion
Index No. 606293/2023
11-09-2023
In the Matter of Hofstra University, Petitioner, v. Nassau County Planning Commission, Nassau County Planning Department, Nassau County Real Estate Planning and Development Department, Nassau County Attorney's Office, Nassau County Legislature, and Nassau County, Respondents.
Unpublished Opinion
Sarika Kapoor, J.
NYSCEF document nos. 29-123 were read and considered in deciding this petition.
Relief Sought
The petitioner, Hofstra University (hereinafter Hofstra), commenced this hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Nassau County to lease to nonparty LVS NY HOLDCO 2, LLC, certain public real property located in Nassau County, and action for related declaratory relief.
Background
In April 2022, the New York State Legislature authorized three new casino licenses with a particular focus on the New York City metropolitan area. In January 2023, nonparty Las Vegas Sands Corp. (hereinafter Sands) announced its plan to pursue a casino project on two parcels of land owned by the respondent Nassau County: a parcel of land where the Nassau Veterans Memorial Coliseum sits (hereinafter the Coliseum parcel), and an adjoining parcel of land where a Marriott hotel sits (hereinafter the Marriott parcel). Sands' plan includes outdoor community spaces, hotel rooms, a live performance venue, celebrity chef restaurants, and a casino. To allow Sands to begin planning, the Nassau County Executive proposed assigning to Sands the lease for the Coliseum parcel and the lease for the Marriott parcel, and then terminating those leases and entering into a new lease with Sands which would cover both the Coliseum parcel and the Marriott parcel (hereinafter together the Nassau Hub). The acts of transferring the two leases to Sands, terminating those leases, and entering into a new lease with Sands for the Nassau Hub are hereinafter collectively referred to as "the lease transfer."
Under the Nassau County Administrative Code, Nassau County cannot lease any public property until the respondent Nassau County Planning Commission (hereinafter the Planning Commission) issues a recommendation to the respondent Nassau County Legislature after following the procedures outlined in Nassau County Administrative Code § 11-8.0. Those procedures include, among other things, holding a public hearing to receive public comment regarding the disposition of the property, in accordance with the Open Meetings Law (Public Officers Law art 7). The Nassau County Administrative Code further requires the Planning Commission to forward proposals to the Nassau County Open Space and Parks Advisory Committee (hereinafter OSPAC) to make a recommendation to the Planning Commission regarding proposals within 30 days after the public hearing. Additionally, it is undisputed that the lease transfer constitutes a Type I action pursuant to the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA), which required the Nassau County Legislature, as the "lead agency," to take a "hard look" relevant environmental concerns to determine whether the lease transfer would have significant adverse environmental impacts.
On February 15, 2023, the respondent Nassau County Planning Department prepared the initial portion of a Full Environmental Assessment Form (hereinafter FEAF) analyzing the environmental impacts of the lease transfer.
The lease transfer was placed on agendas to be discussed by the Planning Commission at three public meetings, on March 2, 2023, April 20, 2023, and April 27, 2023.
At the Planning Commission's meeting on March 2, the room was filled to capacity, and those who were unable to fit into the room where the meeting was held were able to watch the meeting in the lobby of the building and were able to sign up to speak. At the conclusion of the March 2 meeting, the Planning Commission voted to close public comment on the lease transfer.
Between March 3, 2023, and March 10, 2023, counsel for Hofstra, which sits on land adjoining the Nassau Hub, sent to the respondents Nassau County Planning Department (hereinafter the Planning Department), Nassau County Real Estate Planning and Development Department, and Nassau County Attorney's Office (hereinafter collectively the FOIL respondents) requests pursuant to the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL) for the production of documents relating to Sands and the development of a casino. After those requests were constructively denied, Hofstra appealed. On April 19, 2023, the Nassau County Attorney's Office granted in part and denied in part Hofstra's appeal. In denying many of Hofstra's FOIL requests, the Nassau County Attorney's Office invoked Public Officers Law § 87(2)(c), which provides that an agency may deny access to records or portions thereof that, if disclosed, would impair present or imminent contract awards or collective bargaining negotiations.
At a meeting of the Planning Commission held on March 30, the Planning Commission stated that OSPAC had not yet issued a recommendation on the lease transfer, and that OSPAC's next meeting was scheduled for April 19, 2023. The Planning Commission further stated that the 30-day limitation for OSPAC to issue a recommendation after the March 2 meeting was expiring. The Planning Commission further stated that, regardless of whether OSPAC issued a recommendation at its next meeting on April 19, 2023, the Planning Commission would move forward and consider the lease transfer at the Planning Commission's meeting on April 20.
According to the minutes of the OSPAC meeting that was held on April 19, 2023, OSPAC voted "to NOT transfer the lease because of a lack of specificity to the project."
At the Planning Commission meeting held on April 20, 2023, the Planning Commission adjourned discussion of the lease transfer because it had not yet received the FEAF from the Planning Department.
On April 21, 2023, Zac Hudson, Executive Vice President and Global General Counsel for Sands, sent to, among other people, Arthur T. Walsh of Nassau County and Josh Mayer of West Group Law, an email with a draft lease agreement attached indicating that they had "marching orders" from the Nassau County Executive and the CEO of Sands to "get this done" by April 26, 2023.
On April 26, 2023, the FEAF was completed by the Planning Department.
On April 26, 2023, the Nassau County Executive conducted a press conference with Sands, announcing that a tentative agreement had been reached for a new lease between Nassau County as landlord and LVS NY HOLDCO 2, LLC, a holding company of Sands, as tenant.
At the Planning Commission's meeting on April 27, 2023, the Planning Commission passed a resolution recommending that the Nassau County Legislature approve the lease transfer. The resolution provided, among other things, that OSPAC did not make a recommendation. In the resolution, the Planning Commission recommended to the Nassau County Legislature that a negative declaration be issued pursuant to SEQRA for the lease transfer.
The Nassau County Legislature issued a negative declaration pursuant to SEQRA.
On May 12, 2023, the Nassau County Legislature gave public notice that it would consider the lease transfer at its May 22, 2023 meeting.
On May 22, 2023, the Nassau County Legislature voted 17-1 to approve the lease transfer, with one legislator recusing.
On May 31, 2023, Hofstra filed its second amended petition/complaint with exhibits and a memorandum of law. The petition/complaint seeks to annul the lease transfer and related declaratory relief based upon allegation that, during the process of approving the lease transfer, the respondents violated, among other things, the Open Meetings Law, SEQRA, FOIL, and the Nassau County Administrative Code.
Hofstra filed its initial petition on April 18, 2023, and its first amended petition on May 3, 2023.
On July 6, 2023, the FOIL respondents produced to Hofstra all of the responsive records that the FOIL respondents had previously withheld pursuant to Public Officers Law § 87(2)(c).
On July 7, 2023, the respondents filed an answer to the petition/complaint with exhibits and a memorandum of law in opposition.
On July 27, 2023, Hofstra filed a memorandum of law in reply with exhibits.
This Court heard oral arguments on August 8, 2023.
On October 12, 2023, the respondents, by permission, filed additional exhibits to supplement their prior briefing.
Petition/Complaint
Improper notice and conduct of meetings held on March 2, 2023 (first cause of action), April 20, 2023 (second cause of action), and April 27, 2023 (third cause of action)
Petition/Complaint and Memorandum of Law in Support
In the first three causes of action, Hofstra alleges that the meetings held on March 2, 2023, April 20, 2023, and April 27, 2023, were improperly noticed and conducted. With respect to all three meetings, Hofstra alleges that the Planning Commission failed to provide adequate notice that the lease transfer would be considered at the meetings because the meeting agendas made no reference to Sands, the Nassau Coliseum, the Nassau Hub, or the proposed development of a casino. With respect to the meetings held on March 2 and April 20, Hofstra alleges that those meetings were not properly noticed because on the Planning Commission's website, the meeting agendas for those meetings were placed under the year 2022 instead of 2023. Hofstra also alleges that the March 2 and April 20 meetings were improperly noticed because they were conducted on short notice and on dates that were not listed on the Planning Commission's calendar that was published in September 2022. With respect to the March 2 meeting, Hofstra further alleges that it was improperly conducted because the room in which it was held did not have adequate capacity for the public. With respect to the April 20 meeting, Hofstra further alleges that it was improperly noticed because this meeting was scheduled on a date intended to benefit Sands by potentially allowing the lease transfer to advance to the Nassau County Legislature for its meeting on April 24, 2023. Additionally, Hofstra alleges that the April 20 meeting agenda was issued prior to the OSPAC meeting scheduled for April 19, 2023, at which the proposed lease transfer was considered by OSPAC, and therefore, the meeting agenda did not provide notice to the public of what recommendation, if any, would be reported by OSPAC to the Planning Commission for consideration at the April 20 meeting.
In a memorandum of law submitted in support of the petition/complaint, counsel for Hofstra argues, among other things, that the requisite public hearing was not conducted. Counsel asserts that the March 2 meeting could not constitute a public hearing for purposes of the Nassau County Administrative Code because no lease terms were presented, or even existed, at the time of that meeting. Counsel also asserts that the March 2 meeting was not properly noticed under the Open Meetings Law, because no public notice was given that the March 2 meeting would concern Sands, the Nassau Coliseum, the Nassau Hub, or the development of a casino. Counsel asserts that the meeting agenda item omitted any details, and no reasonable person could discern the subject of the public hearing. Additionally, even if the agenda item shared meaningful content, the Planning Commission placed it under the year 2022 instead of 2023 on its website.
Attached as an exhibit to the petition/complaint was, among other things, a document listing the Planning Commission's 2023 meeting and hearing dates (exhibit A). This document indicates that the schedule was adopted on September 8, 2022, and was updated on February 15, 2023, to reschedule a meeting from February 16, 2023, to March 2, 2023.
Hofstra also submits the meeting agenda for the March 2 meeting (exhibit B). With respect to the lease transfer, the agenda listed the following item:
| D. OSPAC | Public Hearing (Public Comment Period Open) |
| 1. OSPAC 1-2023 | Property at: Uniondale, Town of Hempstead 1255 Hempstead Turnpike, Uniondale, NY 11553 Section: 44, Block: F, Lot(s) 326, 351, 401, 411, 412 & 415 ***Assignment of Existing and Enter into New Leases*** |
Hofstra also submits the meeting agenda for the April 20 meeting (exhibit H). With respect to the lease transfer, the agenda listed the following item:
B. OSPAC
Disposition (Public Comment Period Closed)
1. OSPAC 1-2023 (Adjourned on 3/30/23)
Property at: Uniondale, Town of Hempstead 1255 Hempstead Turnpike, Uniondale, NY 11553 Section: 44, Block: F, Lot(s) 326, 351, 401, 411, 412 & 415 ***Assignment of Existing Leases and Enter into New Leases***
Hofstra also submits the meeting agenda for the April 27 meeting (exhibit J). With respect to the lease transfer, the agenda listed the following item:
B. OSPAC
Disposition (Public Comment Period Closed)
1. OSPAC 1-2023 (Adjourned on 4/20/23)
Property at: Uniondale, Town of Hempstead 1255 Hempstead Turnpike, Uniondale, NY 11553 Section: 44, Block: F, Lot(s) 326, 351, 401, 411, 412 & 415 ***Assignment of Existing Lease and Enter into New Lease***
Hofstra also submits a screenshot of the "2022 Nassau County Planning Commission Hearing Agenda and Zoning Referral Agenda" (exhibit C). This screenshot shows the months of July 2022 through April 2023. Hofstra also submits a screenshot from the same website that Hofstra states was taken on April 13, 2023, which has the title "2023 Nassau County Planning Commission Hearing Agenda and Zoning Referral Agenda," and lists dates for the months of April 2023 through October 2023 (exhibit I).
Memorandum of Law in Opposition
In a memorandum of law submitted in opposition, counsel for the respondents asserts that Hofstra lacks standing to argue that the March 2, April 20, and April 27 meetings were improperly noticed, because Hofstra's General Counsel attended the March 2 meeting, and received notice of all three meetings. Counsel further asserts that, in any event, each meeting was properly noticed. With respect to the March 2 meeting, counsel asserts that, by Hofstra's own allegations, and as shown by Hofstra's exhibit A, this meeting was noticed on February 15, more than two weeks in advance. Additionally, counsel asserts that the March 2 meeting was publicized in the February 17, 2023 edition of Newsday. With respect to the April 20 meeting, counsel asserts that this meeting was announced at the Planning Commission's March 30 meeting, noticed on the County's website on March 30, and noticed in the April 4 edition of Newsday.
With respect to Hofstra's contention that the March 2 meeting was improper because the room in which it was conducted was full, counsel for the respondents asserts Hofstra lacks standing to assert this, because counsel for Hofstra attended the meeting. Moreover, counsel asserts that Hofstra has not alleged any facts suggesting that the Planning Commission's use of its normal room was unreasonable, nor does Hofstra dispute that everyone who signed up to give comment was heard. With respect to Hofstra's contentions regarding the meetings being posted under the year 2022 instead of 2023 on the Planning Commission's website, the respondents' counsel asserts that, although the title on the website listed the year 2022, the individual months below had the correct year, i.e., 2023, and, in any event, Hofstra presented no evidence that anyone was confused by this. With respect to Hofstra's contentions that the items on the meeting agendas did not provide sufficient notice of proposed lease transfer, counsel for the respondents asserts that the Nassau County Charter does not require specific details to be provided on agendas. Moreover, counsel asserts, the Open Meetings Law does not require an agenda at all. Counsel contends that the agendas identified both the relevant action-a lease transfer-and the parcels at issue.
In support of its opposition, the respondents submit an affidavit of publication, indicating that on February 17, 2023, Newsday published a list of dates for the Planning Commission's meetings, which listed the date of March 2, 2023 (exhibit 2). Counsel also submits the transcript of the Planning Commission's March 30 meeting, at which the April 20 meeting was scheduled (exhibit 11). Counsel additionally points to Hofstra's exhibits G, which indicates that the Planning Commission's 2023 Meeting and Hearing Dates schedule was updated on March 30, 2023, to add the April 20 meeting. Counsel also submits an affidavit of publication, indicating that notice of the April 20 meeting was published by Newsday on April 4, 2023 (exhibit 12).
Memorandum of Law in Reply
In a memorandum of law in reply, counsel for Hofstra asserts, among other things, that Hofstra does have standing because it has a direct interest in the lease, as it sits next to the Nassau Hub. Counsel further asserts that even though Hofstra attended the meetings, it was deprived of the opportunity to provide meaningful input because the terms of the lease had not been reached at the March 2 meeting, and that was the only meeting open for public comment.
Analysis
The Nassau County Administrative Code provides, in relevant part, that Nassau County may lease any of its real property for a period not to exceed 99 years, for such consideration and upon such terms and conditions as the Nassau County Legislature may deem proper (see Nassau County Administrative Code § 11-8.0). As is relevant to the first three causes of action, the Nassau County Administrative Code further provides that "no county property shall be sold, conveyed, exchanged, granted, released or otherwise disposed until the Nassau County Planning Commission has issued its recommendation in accordance with" certain procedures, which include, among other things, that within 30 days after the date of receipt of a proposal to lease Nassau County's real property, "the Nassau County Planning Commission shall hold a public hearing to receive public comment regarding the disposition of said property upon such notice as required by the Public Officers Law of New York State" (id. § 11-8.0[b]).
The Open Meetings Law (Public Officers Law art 7), was "passed in 1976 after the crises of confidence in American politics occasioned by Watergate" and "was intended-as its very name suggests-to open the decision-making process of elected officials to the public while at the same time protecting the ability of the government to carry out its responsibilities" (Gordon v Village of Monticello, 87 N.Y.2d 124, 126 [1995]; see Matter of McCrory v Village of Mamaroneck Bd. of Trustees, 181 A.D.3d 67, 68 [2d Dept 2020]).
The Court will first address the issue of standing. "Any aggrieved person shall have standing to enforce the provisions of [the Open Meetings Law] against a public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, or an action for declaratory judgment and injunctive relief" (Public Officers Law § 107). Here, it is undisputed that Hofstra received actual notice of the meetings and attended the meetings. Therefore, Hofstra was not aggrieved by any alleged improper notice, and lacks standing to challenge the sufficiency of the notice provided (see McGrath v Town Bd. of N. Greenbush, 254 A.D.2d 614, 617 [3d Dept 1998] ["Petitioner received actual notice of the proposed amendment and attended the public hearing... [t]herefore, she was not aggrieved by the alleged deficiencies in the published notice"]; Brew v Hess, 124 A.D.2d 962, 963 [1st Dept 1986] ["since petitioner received actual notice of the proposed amendment and attended the pertinent public hearings, he was not aggrieved by any deficiencies in the published notices"]; cf. Matter of McCrory v Village of Mamaroneck Bd. of Trustees, 181 A.D.3d at 68 [holding that the petitioners/plaintiffs were aggrieved for purposes of the Open Meetings Law where they were allegedly excluded from certain municipal meetings]).
In any event, the notice provided satisfied the requirements of the Open Meetings Law and the Nassau County Charter. The relevant provisions of the Open Meetings Law provide:
1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given or electronically transmitted to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
2. Public notice of the time and place of every other meeting shall be given or electronically transmitted, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
...
6. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body's internet website.(Public Officers Law § 104).
The Nassau County Charter provides, in relevant part, that "[t]he Planning Commission shall not approve, make recommendations upon, or vote on any application or item unless such application or item has been included on an agenda that has been posted to the official website of Nassau County at least one week prior to said approval, recommendation or vote" (Nassau County Charter § 1602[c]).
Here, the respondents submit evidence demonstrating that the March 2 meeting was publicized in the February 17, 2023 edition of Newsday, and the April 20 meeting was publicized in the April 4, 2023 edition of Newsday, thus satisfying the requirements of Open Meetings Law § 104(1) and (2). Additionally, Hofstra's submissions demonstrate that notice of the meetings was posted on the Planning Commission's website, satisfying the requirements of Open Meetings Law § 104(6). Hofstra's contention that the notice on the Planning Commission's website was ineffective because the meetings were posted under the year 2022 instead of 2023 is unpersuasive. The screenshots provided by Hofstra contains months beginning with July 2022 through April 2023. Although the heading on the screenshot lists the year as 2022, the months are listed in chronological order and carry over from year 2022 to year 2023, and, as the respondents assert, there is no evidence in the record that anyone was confused by this.
Hofstra strenuously argues that the items listed on the Planning Commission's meeting agendas for the meetings held on March 2, April 20, and April 27 did not provide adequate information to apprise the public that the proposed development of a casino would be considered. While the Court agrees with this assertion, the lack of details on the meeting agendas does not violate any statute. As noted in the memorandum of law submitted by the respondents' counsel, while the Nassau County Charter requires that relevant items be included on an agenda, there is no requirement that specific details must be provided (see generally Nassau County Charter § 1602[c]), and the Open Meetings Law does not require an agenda at all (see Public Officers Law 104; see also Matter of LaLima v County of Suffolk, 45 A.D.3d 845, 847 [2d Dept 2007] ["there is no statutory requirement that notice of the agenda of the meeting be given"]).
With respect to the size of the room in which the March 2 meeting was conducted, Public Officers Law § 103(d) provides that "Public bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in an appropriate facility which can adequately accommodate members of the public who wish to attend such meetings." Here, Hofstra does not have standing to challenge the size of the room in which the meeting was conducted, as Hofstra attended that meeting. In any event, Hofstra has not alleged or presented any evidence demonstrating that anyone who wanted to speak at the meeting was unable to do so due to the size of the room (see Matter of Windsor Owners Corp. v City Council of City of NY, 23 Misc.3d 490, 498 [Sup Ct, New York County 2009] ["The court finds no evidence that the Commission denied anyone who wished to speak an opportunity to do so"]).
Based on the foregoing, Hofstra has not established that the meetings held on March 2, April 2, and April 27 were improperly noticed or conducted.
Failure to post materials and proposed resolution for the meetings held on March 2, 2023 (fourth cause of action), April 20, 2023 (fifth cause of action), and April 27, 2023 (sixth cause of action)
Petition/Complaint and Memorandum of Law in Support
In the fourth, fifth, and sixth causes of action, Hofstra alleges that the Planning Commission failed to post materials and proposed resolutions for the meetings held on March 2, April 20, and April 27. With respect to all three meetings, Hofstra alleges that neither any materials nor any proposed resolution relating to the lease transfer was made available to the public, in meeting agendas or otherwise, in advance of the meetings. With respect to the March 2 meeting, Hofstra also alleges that the Planning Commission failed to conduct a proper hearing, because the proposed lease transfer had not been negotiated and the terms had not been reached on or before the March 2 meeting, and no materials or proposed resolution was provided in advance of that meeting, and therefore the meeting was premature. With respect to the April 20 and 27 meetings, Hofstra alleges that, because the meeting agendas for those meetings stated, "Public Comment Period Closed," the Planning Commission failed to provide notice for public comment at those meetings.
Memorandum of Law in Opposition
In opposition, counsel for the respondents argues that the Planning Commission was not required to post materials and proposed resolutions in advance of the March 2, April 20, April 27 meetings, because the Open Meetings Law only requires that materials be made available if they are "scheduled to be the subject of discussion." Here, counsel contends, the Planning Commission is a land-use body and does not consider the business or legal terms of leases and, as such, no legal documents were the "subject of discussion" at those meetings. Counsel asserts that the only document discussed was the FEAF, which was discussed at the April 27 meeting, and an earlier version of the FEAF was produced in response to Hofstra's FOIL requests on April 19, 2023. Additionally, counsel asserts that because the Planning Commission prepares resolutions only after any vote is concluded, there were no proposed resolutions to provide in advance. Counsel also asserts that the Open Meetings Law only requires documents that are available to the public pursuant to FOIL, and since the contract negotiations were ongoing until April 26, 2023, any documents related to those negotiations could not be made public before the Planning Commission's recommendation. In response to Hofstra's contention that the March 2 meeting was improper because the terms of the lease had not been finalized, counsel for the respondents asserts that the Planning Commission does not review the business terms or legal conditions of leases. Accordingly, counsel asserts, the proper time for Hofstra or other members of the public to comment on the terms of the lease was when the Nassau County Legislature considered those terms at its May 22 public hearing.
In support of these contentions, the respondents submit an affidavit from William Nimmo, the Deputy Commissioner of the Planning Commission (exhibit 31). Nimmo stated, among other things, that "as a land-use body, the Planning Commission's review is limited to the proposal itself and does not extend to the business or legal terms of any associated legal documents such as leases, which is the province of the County Executive and Legislature." Nimmo also stated that the "Planning Commission's standard practice is to prepare resolutions only after a vote has been taken."
Memorandum of Law in Reply
In a memorandum of law in reply, counsel for Hofstra asserts that the Planning Commission could not conduct a public hearing and close public comment about a lease before the lease's terms had been negotiated. Counsel explained that, in 2001 and 2003, the Nassau County Administrative Code was changed to require a public hearing with public comment and, among other things, a recommendation by the Planning Commission before the Nassau County Legislature can authorize the lease of County property, and here, the requirement to hold a public hearing was not satisfied.
Analysis
Under the Open Meetings Law, "[a]gency records available to the public pursuant to [FOIL], as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefor, to the extent practicable at least twenty-four hours prior to the meeting during which the records will be discussed.... If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such records shall be posted on the website to the extent practicable at least twenty-four hours prior to the meeting" (Public Officers Law § 103[e]).
In determining whether the respondents violated Public Officers Law § 103(e) by failing to provide to the public a copy of the lease or the resolution adopted on April 27, the case Matter of Ballard v New York Safety Track LLC (126 A.D.3d 1073 [3d Dept 2015]) is instructive. In Matter of Ballard, the respondent New York Safety Track LLC (hereinafter Safety Track) applied for site plan approval to the respondent Town of Harpersfield Planning Board (hereinafter the Planning Board) to convert a former airport property into a motorcycle training facility. The Planning Board conditionally approved the proposed site plan application and the facility was completed thereafter. Approximately two years later, after receiving numerous complaints from neighboring landowners that the facility was hosting large, high-speed racing events, the respondent Town of Harpersfield Code Enforcement Officer (hereinafter the CEO) advised Safety Track that its racing and large track events were not authorized pursuant to the site plan that had been approved by the Planning Board. A few weeks later, the CEO, the Planning Board, the Town, and Safety Track executed an "Agreement for Operation of New York Safety Track" (hereinafter the 2013 agreement), which purported to outline Safety Track's approved land uses. The petitioners, a group of concerned landowners within the vicinity of the facility, commenced a hybrid proceeding pursuant to CPLR article 78 to annul the 2013 agreement and action for related declaratory relief (id. at 1073-1074). The Appellate Division, Third Judicial Department (hereinafter the Third Department) affirmed the Supreme Court's determination that the Town violated the Open Meetings Law on several occasions leading up to the execution of the 2013 agreement (id. at 1076). As relevant here, the Third Department stated, "despite the Town respondents' insistence that the Town was not obligated or that it was not feasible to make available to the petitioners the proposed 2013 agreement before it was put to a vote, we affirm that part of the Supreme Court's judgment as found that the Town's conduct in that regard denied petitioners 'any meaningful participation' in the process leading to the final adoption of the controversial 2013 agreement, in clear contravention of Public Officers Law § 103(e)" (id. at 1077).
In addition to Matter of Ballard, the policy considerations underlying the Open Meetings Law provide guidance. As was explained in Matter of McCrory v Village of Mamaroneck Bd. of Trustees (181 A.D.3d 67), "[t]he Open Meetings Law, was intended, as its very name suggests, to open the decision-making process of elected officials to the public while simultaneously striking a balance in protecting the ability of government to carry out its functions and responsibilities. In enacting the Open Meetings Law, the legislature sought to ensure that public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The provisions of the Open Meeting Law are to be given broad and liberal constructions so as to achieve the purpose for which it was enacted" (Matter of McCrory v Village of Mamaroneck Bd. of Trustees, 181 A.D.3d at 70 [citations and internal quotation marks omitted]).
With these principles in mind, the Court finds that the respondents did not violate Open Meetings Law § 103(e) by failing to provide a copy of the lease to the public prior to conducting the meeting on March 2. The Nassau County Administrative Code requires the Planning Commission to review proposals to lease property; not the leases themselves (see Nassau County Administrative Code § 11-8.0). Since the Planning Commission had no obligation review the terms of lease prior to making a recommendation to the Nassau County Legislature, the Planning Commission committed no violation by not providing a copy of the lease to the public.
With respect to the resolution adopted on April 27, however, the Court finds that the respondents violated Public Officers Law § 103(e) by failing to provide to the public a copy of the resolution prior to the meetings held on March 2, April 20, and April 27. The Open Meetings Law requires that "any proposed resolution... that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefor, to the extent practicable at least twenty-four hours prior to the meeting during which the records will be discussed.... If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such records shall be posted on the website to the extent practicable at least twenty-four hours prior to the meeting" (Public Officers Law § 103[e]).
The resolution adopted on April 27, wherein the Planning Commission recommended to the Nassau County Legislature that the lease transfer be approved, was clearly the "subject of discussion" (Public Officers Law § 103[e]) at the Planning Commission's meetings held on March 2, April 20, and April 27. The top of the resolution contains the notation "OSPAC FILE NO: 1-2023," which matches the notation on the Planning Commission's agenda items for all three meetings. The resolution recites:
"NASSAU COUNTY EXECUTIVE'S OFFICE forwarded to the [PLANNING] COMMISSION a proposal for the assignment of the existing Amended and Restated Coliseum Lease between the County of Nassau and Nassau Live Center, LLC to LVS NY HOLDCO 2, LLC for the Nassau County Veterans Memorial Coliseum parcels; the assignment of the existing leases between the County of Nassau and Royal Blue Hospitality LLC to LVS NY HOLDCO, LLC for the Marriott Hotel parcels; the execution of new lease between the County of Nassau and LVS NY HOLDCO 2, LLC for the Nassau County Veterans Memorial Coliseum parcels; and the execution of new lease between the County of Nassau and LVS NY HOLDCO, LLC for the Marriot Hotel parcels..."
The resolution further recites that a public hearing on the lease transfer was held on March 2; thus, the face of the resolution itself indicates that it was the "subject of discussion" at the March 2 meeting. The resolution was voted on at the meeting held on April 27. Under these circumstances, the resolution dated April 27 was clearly the "subject of discussion" at the meetings held on March 2, April 20, and April 27 for purposes of Public Officers Law § 103(e), and the Planning Commission violated that statute by failing to post the resolution on its website prior to those meetings.
The position advanced by the respondents-that they were not obligated to provide the public with a copy of the resolution because it was not written down until after it was voted upon at the April 27 meeting-is untenable. The statute does not contain language limiting an agency's obligation to provide resolutions to only those resolutions which are written down; rather, the statute requires that any resolution that is the "subject of discussion" shall be made available. As the resolution here was the "subject of discussion" at the meetings on March 2, April 20, and April 27, the Planning Commission had an obligation to provide a copy of it to the public. The position advanced by the respondents would allow agencies to avoid their obligations under the Open Meetings Law by simply refraining from memorializing resolutions in writing until after the conclusion of a meeting at which the resolution is discussed. Giving the provisions of the Open Meetings Law "broad and liberal constructions so as to achieve the purpose for which it was enacted" (Matter of McCrory v Village of Mamaroneck Bd. of Trustees, 181 A.D.3d at 70), and guided by Matter of Ballard (126 A.D.3d at 1027), the Court rejects the respondents' contention in this regard.
The respondents argue that even if the Planning Commission violated the Open Meetings Law, the Court does not have the ability to annul the lease transfer and the subsequent new lease, for two reasons. First, the respondents assert that since the Planning Commission's role was to merely issue a nonbinding recommendation to the Nassau County Legislature, which the Nassau County Legislature was free to ignore when it voted 17-1 to approve the lease transfer, it was a non-binding advisory recommendation not subject to review pursuant to CPLR article 78. In support of this contention, the respondents rely on Headriver, LLC v Town Bd. of Town of Riverhead (307 A.D.2d 314 [2d Dept 2003]) and Matter of Baker-Firestone v Bowman (43 A.D.2d 738 [2d Dept 1973]). Second, the respondents assert that the Nassau County Legislature's independent decision makes any alleged violation by the Planning Commission irrelevant. In support of this contention, the respondents rely on Matter of Middleland Inc v City Council of City of NY (14 Misc.3d 1223 [A], 2006 NY Slip Op 52546[U] [Sup Ct, Kings County 2006]) and Matter of Dombroske v Board of Educ. Of W. Genesee Cent. School Dist. (118 Misc.2d 800 [Sup Ct, Onondaga County 1983]).
The Court rejects the respondents' contentions. With respect to the first contention, neither of the cases relied upon involved the Open Meetings Law. With respect to both contentions, none of the four cases relied upon indicate that they involved mandatory language akin to that used in the Nassau County Administrative Code. The Nassau County Administrative Code provides that "no county property shall be sold, conveyed, exchanged, granted, released or otherwise disposed until the Nassau County Planning Commission has issued its recommendation in accordance with," among other things, the Open Meetings Law (Nassau County Administrative Code § 11-8.0). To accept the respondents' assertion that the County Legislature's vote cures any alleged violation by the Planning Commission of the Open Meetings Law would render meaningless Nassau County Administrative Code § 11-8.0, and "would be contrary to the well-established rule that courts should not interpret a statute in a manner that would render it meaningless" (Matter of Suarez v Williams, 26 N.Y.3d 440, 451 [2015]).
"[T]he Legislature has granted the courts the discretionary power, upon good cause shown, to declare void any action taken by a public body in violation of the Open Meetings Law" (Chestnut Ridge Assoc., LLC v 30 Sephar Lane, Inc., 169 A.D.3d 995, 998 [2d Dept 2019]; see Public Officers Law § 107[1]). "A showing of 'good cause' generally requires intentional wrongdoing or, at least, a showing that petitioners were aggrieved or prejudiced by the violation" (Matter of Lynch v New York City Civilian Complaint Review Bd., 206 A.D.3d 558, 561 [1st Dept 2022]). Where the violation of the Open Meetings is "an attempt to avoid public scrutiny" of the action, annulment is warranted (Matter of Southern Realty & Dev., LLC v Town of Hurley, 218 A.D.3d 900, 901 [3d Dept 2023]). Where a violation of the Open Meetings Law is technical and non-prejudicial, in contrast, annulment of the action is not warranted (see Specht v Town of Cornwall, 13 A.D.3d 380, 381 [2d Dept 2004]). Similarly, where the violation of the Open Meetings Law was due to mere negligence, annulment of the action is not warranted (see Matter of Cutler v Town of Mamakating, 137 A.D.3d 1373, 1375 [3d Dept 2016]).
Here, Hofstra has demonstrated that the failure to post the resolution was not merely technical, but rather, was "an attempt to avoid public scrutiny" of the proposed lease transfer (Matter of Southern Realty & Dev., LLC v Town of Hurley, 218 A.D.3d 900, 901 [3d Dept 2023]; see Matter of Haverstraw Owners Professionals & Entrepreneurs ("H.O.P.E.") v Town of Ramapo Zoning Bd. of Appeals, 151 A.D.3d 724, 725 [2d Dept 2017]; see generally Matter of Roberts v Town Bd. of Carmel, 207 A.D.2d 404, 405 [2d Dept 1994]). It is apparent from the facts that the respondents attempted to avoid public scrutiny of the lease transfer throughout the entire process of approving the lease transfer. For example, as discussed in the Court's analysis of the first three causes of action, the public notices of the meetings held on March 2, April 20, and April 27 contain no language that would alert an average member of the public that the lease transfer related to the Nassau Coliseum, Sands, or the development of a casino.
Additionally, the respondents have not provided any compelling reason as to why the Planning Commission voted to close public comment on the lease transfer at the conclusion of the March 2 meeting. A review of the transcript of the March 2 meeting reveals that the vast majority of members of the public who appeared to give comment were members of various labor unions who spoke in support of the lease transfer and the jobs that would be created by the construction of the proposed development. One member of the public who spoke at the meeting on March 2, who identified himself as "an advocate for Honest and Competent Government" and "the editor and founder of Nassau County NY news," stated that he was "known for going to meetings and live streaming the event" but on that evening, the link to the live stream didn't work until after he posted on his Facebook page to his 18,000 followers that the live stream link did not work. He further stated that neither the Nassau County Executive nor any of the 19 Nassau County Legislators posted on their websites that the development of a casino was going to be discussed at the March 2 meeting. He urged the Planning Commission to "have another meeting where the residents are told about the meeting, and you don't allow the union to prevent the taxpayers from coming into the room."
Based on the foregoing, Hofstra has demonstrated that, aside from the Planning Commission's violation of the Open Meetings Law by failing to post the April 27 resolution on its website in advance of the March 2, April 20, and April 27 meetings, "there are other concerns regarding the procedures followed" in approving the lease transfer and, therefore, Hofstra has established good cause to annul the lease transfer (see Matter of Oshry v Zoning Bd. of Appeals of Inc. Vil. of Lawrence, 276 A.D.2d 491, 492 [2d Dept 2000] ["while a violation of the Open Meetings Law alone may not be sufficient to invalidate the determination of the ZBA, where, as here, there are other concerns regarding the procedures followed in granting the variances, the Supreme Court providently exercised its discretion in annulling the determination" (internal citation omitted)]).
Hofstra also seeks attorney fees and costs pursuant to Public Officers Law § 107(2), which provides: "In any proceeding brought pursuant to this section, costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party. If a court determines that a vote was taken in material violation of this article, or that substantial deliberations relating thereto occurred in private prior to such vote, the court shall award costs and reasonable attorney's fees to the successful petitioner, unless there was a reasonable basis for a public body to believe that a closed session could properly have been held."
The Court of Appeals has explained that "awards of attorneys' fees under the Open Meetings Law should not be granted by courts to the prevailing party simply as a matter of course" (Matter of Gordon v Village of Monticello, 87 N.Y.2d at 124). "[P]urely technical and nonprejudicial infractions or wholly unintentional violations do not rise to the level of supporting an award of attorneys' fees. Similarly, where the defendant has made a good-faith, reasonable effort to comply with the statute, attorneys' fees may not be warranted" (id. at 127-128).
Hofstra has demonstrated that an award of reasonable attorneys' fees and litigation costs is warranted pursuant to Public Officers Law § 107(a)(2). Hofstra has demonstrated that the respondents' actions were taken "in such a manner as to circumvent the Open Meetings Law" (id. at 128 [internal quotation marks omitted]; see Matter of Ballard v New York Safety Track LLC, 126 A.D.3d at 1077 ["In light of these obvious violations of the Open Meetings Law, [the] Supreme Court reasonably exercised its discretion in awarding counsel fees and costs to petitioner"]).
Based on the foregoing, Hofstra has established (1) that the Planning Commission violated the Open Meetings Law by failing to post the April 27 resolution on its website in advance of the March 2, April 20, and April 27 meetings, (2) good cause to annul the lease transfer, and (3) its entitlement to reasonable attorneys' fees and costs pursuant to Public Officers Law § 107(a)(2).
Work sessions granted special access to Sands (seventh cause of action) and violated the Open Meetings Law (eighth cause of action)
Petition/Complaint and Memorandum of Law in Support
In the seventh cause of action, Hofstra alleges that the Planning Commission and Sands had private deliberations during a March 9 "work session," which violated the Open Meetings Law, because the work session involved public business. Hofstra alleges that this violation of the Open Meetings Law was particularly egregious because (a) the Planning Commission had purported to declare the "public hearing" concerning the proposed lease transfer to have closed at the conclusion of the March 2 meeting, and (b) the Planning Commission withdrew its March 9 agenda immediately after the "work session" without any discussion before the public. Hofstra further alleges that, insofar as information relevant to the lease transfer was conveyed to the Planning Commission on March 9, the Planning Commission should re-open the public comment period for the lease transfer so that this information can be reviewed and discussed by the public at a properly noticed meeting.
In the eighth cause of action, Hofstra alleges that the Planning Commission's work sessions, including but not limited to those that occurred on March 2, March 9, March 30, April 20, and April 27, involved public business and constituted a meeting within the definition of Public Officers Law § 102 and did not constitute permissible executive sessions within the meaning of Public Officers Law § 105. Hofstra further alleges that the Planning Commission did not properly notice the meetings or conduct the meetings because the public was not allowed to attend. Hofstra also alleges that the minutes of the work sessions were not made public.
In the memorandum of law submitted in support, counsel for Hofstra asserts that, to the extent the Planning Commission met to discuss the proposed lease transfer during "work sessions," the meetings were improper under Public Officers Law § 103(3) and 105.
Memorandum of Law in Opposition
In the memorandum of law in opposition, counsel for the respondents asserts that the work sessions were public meetings, as each work session was publicly noticed in advance, including its start time and location. Counsel asserts that the work sessions took place directly before the Planning Commission's regular meetings and were held in the room next to where the regular meetings take place. Counsel asserts that the door was left open to permit members of the public to attend at any point. Counsel further asserts that, while Sands representatives did attend certain work sessions to answer any questions from the Planning Commission, there was nothing improper about that, as those sessions were open to the public.
In support of their contention that the work sessions were properly noticed in advance, including the start time and locations of the work sessions, the respondents point to, among other things, Hofstra's exhibits A and G, which are documents entitled "Nassau County Planning Commission 2023 Meetings and Hearing Dates." These documents identified the start time of each work session and indicated that work sessions are held in the "minority caucus room." The respondents also rely on the affidavit of Nimmo (exhibit 31). Nimmo stated that the Planning Commission's work sessions are held in the "minority caucus room," which is next to the room in which regular meetings take place. Work sessions are open to the public, and the door is left open. Nimmo stated that roughly half of the work sessions are attended by members of the public. Since the Planning Commission does not conduct formal votes during its work sessions, it does not take minutes at work sessions.
Memorandum of Law in Reply
In the memorandum of law in reply, counsel for Hofstra asserts that the respondents cite no statute or case law in support of their contention that the meetings were public because the door was left open. Moreover, counsel contends that if the work sessions were, in fact, public, the respondents violated their obligation to take minutes of the work sessions, as required by Public Officers Law § 106. Further, counsel asserts that the respondents' contentions are factually untrue, because an attorney for Hofstra was present in the large meeting room where public meetings occur, and the door to the back room, where the Planning Commission conducted the work session, was closed, and the attorney observed people leaving the work session after providing a presentation to the Planning Commission.
In support of this contention, Hofstra relies upon the affidavit of Torrey Chin (exhibit BB). According to Chin's affidavit, Chin attended the meeting on March 9, 2023, which was scheduled to start at 10:00 a.m. Chin arrived between 9:20 a.m. and 9:30 a.m., and took a seat in the meeting room. Other members of the public began to arrive in the meeting room, and no members of the Planning Commission were present in the meeting room. At approximately 9:45 a.m., a group of five or six people emerged from a closed door at the back of the meeting room, behind the elevated chairs where members of the Planning Commission sit during meetings. It appeared to Chin that those individuals had been making a presentation, because one of them held a very large presentation board. The door at the back of the meeting room immediately closed behind them. At approximately 9:55 a.m., a member of the Planning Commission emerged from the same closed door at the back of the meeting room. He announced that the Planning Commission was running late and the Planning Commission's meeting would begin shortly.
Analysis
The Open Meetings Law defines a "meeting" as "the official convening of a public body for the purpose of conducting public business" (Public Officers Law § 102[1]) and requires that "[e]very meeting of a public body shall be open to the general public" except for certain executive sessions (id. at § 103[a]). Here, the parties agree that the work sessions were "meetings" for the purposes of Public Officers Law § 102(1), but disagree as to whether the work sessions were actually open to the general public, as required by Public Officers Law § 103(a). In support of their respective positions, the petitioner relies on the affidavit of Chin, who stated that the work session held on March 9 was not open to the public, while the respondents rely on the affidavit of Nimmo, who stated that the work sessions were open to the public.
"CPLR 7804(h) expressly provides that a trial must be conducted 'forthwith' to resolve any triable issue of fact which is raised in a CPLR article 78 proceeding" (Matter of Smith v Ravitch, 121 A.D.2d 639, 640 [2d Dept 1986]; see CPLR 7804[h]; Matter of Evercare Choice, Inc. v Zucker, 218 A.D.3d 882, 885-886 [3d Dept 2023] ["Proceedings brought pursuant to CPLR article 78 are summary in nature but, where issues of material fact exist, they must be decided at a hearing"]).
Here, the conflicting affidavits of Nimmo and Chin reveal a triable issue of fact as to whether the Planning Commission's work sessions, and in particular the work session held on March 9, were open to the public. Under these circumstances, this issue cannot be resolved without a trial (see Matter of Smith v Ravitch, 121 A.D.2d at 640 [remitting a CPLR article 78 proceeding to the Supreme Court for a trial where "conflicting affidavits submitted by the parties clearly create a sharp factual dispute"]; see also Matter of County of Suffolk v Long Is. Power Auth., 119 A.D.3d 940, 942-943 [2d Dept 2014] [remitting a CPLR article 78 proceeding to the Supreme Court for a hearing where there were triable issues of fact]).
Disregard of 45-day limitation after March 2 meeting (ninth cause of action)
Petition/Complaint and Memorandum of Law in Support
In the ninth cause of action, Hofstra alleges that, if the March 2 meeting constituted a public hearing, then (1) the Planning Commission violated its obligation to issue written recommendations to the County Executive and the County Legislature within 45 days; (2) the Planning Commission acted outside of its authority by extending the 30-day requirement for OSPAC to report its recommendation, if any, to the Planning Commission; and (3) because OSPAC had not issued a recommendation to the Planning Commission, the Planning Commission acted outside of its authority by voting on April 27, 2023, to recommend approval of the lease transfer to the Nassau County Legislature without providing an opportunity for OSPAC to report its recommendation, if any, to the Planning Commission. Hofstra asserts that this conduct violated Nassau County Administrative Code § 11-8.0.
In the memorandum of law submitted in support of the petition/complaint, counsel for Hofstra asserts that OSPAC, at repeated meetings, determined not to issue a recommendation on the proposed lease transfer. Counsel asserts that the fact that OSPAC could not arrive at a recommendation after multiple meetings should have caused the Planning Commission to question the sufficiency of the information before it. Counsel asserts that, although OSPAC did not make a recommendation within 30 days as required by the Nassau County Administrative Code, the Planning Commission bypassed OSPAC and moved forward with its recommendation to the Nassau County Legislature, in violation of the Nassau County Administrative Code.
Memorandum of Law in Opposition
In the memorandum of law in opposition, counsel for the respondents asserts that Hofstra lacks standing to assert that the Planning Commission violated its obligation to issue written recommendations within 45 days, because Hofstra has not pled facts establishing that it faces any injury from the Planning Commission's minor delay, nor could it, as Hofstra is opposing the lease transfer. Second, counsel asserts that, even if Hofstra had suffered some injury, it does not fall within the "zone of interests" sought to be protected by the 45-day target in the Nassau County Administrative Code, as that provision is to protect the Nassau County Legislature from excessive delay by the Planning Commission holding up a proposal. Moreover, counsel asserts that even if the Planning Commission's recommendation were a necessary step before the Nassau County Legislature could vote, the provision was not mandatory, because the designation of time was not intended as a limitation on the power of the Planning Commission.
Analysis
The relevant provision of the Nassau County Administrative Code provides that, subsequent to a public hearing by the Planning Commission to receive public comment regarding the disposition of public property, "OSPAC shall report within thirty (30) days to the Nassau County Planning Commission any recommendations it may have with respect to such proposal" (Nassau County Administrative Code § 11-8.0). The Nassau County Administrative Code further provides that the "Planning Commission shall issue its written recommendations regarding the disposition of... property to the County Executive and the County Legislature within forty-five days of the conclusion of [the] public hearing" (Nassau County Administrative Code § 11-8.0[c]).
"Although use of the word 'shall' generally denotes a mandatory requirement, when addressing time limits imposed on agencies and officials, courts have held that, unless the language used in a statute or regulation shows that the designation of time was intended as a limitation on the power of the body or officer, the provision is directory rather than mandatory" (Matter of Brownell v New York State Justice Ctr. For the Protection of People with Special Needs, 212 A.D.3d 998, 1001 [3d Dept 2023] [citations and internal quotation marks omitted]; see Matter of Grossman v Rankin, 43 N.Y.2d 493, 501 [1977] ["courts have repeatedly held that unless the language used by the Legislature shows that the designation of time was intended as a limitation on the power of the body or officer, the provision is directory rather than mandatory"]). "Conversely, a mandatory interpretation is justified where the nature of the act to be performed, or the language used by the legislature, show[s] that the designation of time was intended as a limitation of the power of the officer" (Matter of City of New York v Novello, 65 A.D.3d 112, 116 [1st Dept 2009]).
Here, assuming without deciding that Hofstra has standing to argue that the time limitations of the relevant provisions of the Nassau County Administrative Code were violated, there is no indication that those time limits were limitations on the Planning Commission's ability to act once the relevant time periods passed (compare Matter of Pena v New York State Gaming Commn., 127 A.D.3d 1287 [3d Dept 2015] [holding that a statute is directory rather than mandatory where the statute did not impose any limitation on the respondent's power to act or provide any consequence for the failure to comply with the time limit, and there was no legislative history suggesting that a time limit was intended to be mandatory] with Matter of City of New York v Novello, 65 A.D.3d at 116-117 [holding that a time limitation in a statute was mandatory where language describing the period of time to perform was followed by negative language limiting performance to the prescribed time frame]). Here, as there is no language in the Nassau County Administrative Code prohibiting the Planning Commission from acting after the subject time frames lapse, and Hofstra has not provided any legislative history indicating that the time limits are mandatory rather than directory, the Court agrees with the respondents that the time frames were directory, rather than mandatory.
"Where, as here, an agency fails to follow a procedural provision that is merely directory, the subsequent determination should only be judicially annulled when the challenger can show that substantial prejudice resulted from the agency's noncompliance" (Matter of Pena v New York State Gaming Commn., 127 A.D.3d at 1289). The length of a delay is relevant to the determination of whether a party has suffered substantial prejudice from that delay (see Matter of Sarkisian Bros. v State Div. of Human Rights, 48 N.Y.2d 816, 818 [1979]). However, "the mere passage of time normally will not constitute substantial prejudice in the absence of some showing of actual injury" (id. at 818).
Here, the ninth cause of action does not allege that Hofstra was substantially prejudiced by the Planning Commission's failure to issue a written recommendation to the Nassau County Legislature within 45 days after the public hearing on March 2, or by OSPAC's failure to make a recommendation to the Planning Commission within 30 days. Nor has Hofstra otherwise shown that it was substantially prejudiced by the lack of compliance with these timeframes. Under these circumstances, the Court finds that Hofstra's ninth cause of action is without merit.
Invalidity of the April 27 and May 22 votes based upon violations of the Open Meetings Law, the Nassau County Charter, and the Nassau County Administrative Code (tenth cause of action)
Petition/Complaint and Memorandum of Law in Support
In the tenth cause of action, Hofstra alleges that the vote by the Planning Commission on April 27 and the vote by the County Legislature on May 22 are invalid because: no proper public hearing to receive public comment was held; the Planning Commission did not identify what lease it was considering or how that lease related to the two leases that were purportedly considered at the March 2 meeting; the Planning Commission did not review the use and development of the property planned under the proposed lease transfer; no environmental review was conducted; the Planning Commission did not consider a recommendation by OSPAC; the Planning Commission did not issue written recommendations to the County Legislature and the County Executive; the Planning Commission did not conduct due diligence or a conflict check regarding Sands or LVS NY HOLDO 2, LLC; and the tentative lease agreement provides for Nassau County to coordinate with Sands and have Sands fund the defense of actions or proceedings, and thus was subject to improper influence and conflicts of interest.
In the memorandum of law submitted in support of the petition/complaint, counsel for Hofstra asserts that the Planning Commission violated the statutory requirement of the Nassau County Administrative Code that its recommendation to the Nassau County Legislature take into account the Planning Commission's own criteria under the County's master plan. With no analysis or explanation or discussion, the April 27 resolution recited that the proposal was "in compliance with the criteria identified in the Nassau County Planning Commission's Master Plan and the criteria governing review by OSPAC set forth in Title 47 of the Miscellaneous Laws of Nassau County."
Memorandum of Law in Opposition
In the memorandum of law in opposition, counsel for the respondents first asserts that Hofstra does not have standing to challenge the validity of the lease transfer because it will not suffer any injury from the lease transfer, as the lease transfer does not authorize any development, but only changes who has site control over the land. With respect to the list of alleged wrongdoings in Hofstra's tenth cause of action, counsel for the respondents asserts that the Planning Commission properly identified the lease at issue, as the Planning Commission clearly stated that it was discussing a request for a disposition for an assignment of leases and a proposed new lease for the Nassau Hub; that the Planning Commission was not required to consider OSPAC's untimely recommendation, as there is no authority in support of Hofstra's contention that, in effect, an advisory body can kill any project by simply refusing to act. In any event, counsel asserts, OSPAC did issue a recommendation against the lease transfer on April 19, 2023, which was considered by the Planning Commission before the April 27 vote. Counsel further asserts that the Planning Commission complied with the Nassau County Administrative Code's requirement that the Planning Commission make its recommendation in accordance with the master plan for development in Nassau County, as the April 27 resolution stated that the proposal was in compliance with the master plan, which is all the administrative code requires. Counsel also contends that the Planning Commission properly conducted due diligence and conflict checks, as shown in the affidavit of Nimmo. Counsel also asserts that the agreement that Sands will be responsible for covering the cost of defending certain actions and proceedings against the County is not a conflict of interests and saves County taxpayers the obligation of covering the cost of such litigation.
Memorandum of Law in Reply
In the memorandum of law in reply, counsel asserts that the Nassau County Legislature voted to approve to lease specifically for development. The lease also states that the Nassau County Legislature is providing authorization for usage rights without the need for further legislative approval. Counsel also contends that a positive declaration pursuant to SEQRA and an environmental impact statement were required, because there is potential for at least one significant environmental impact. Lastly, counsel asserts that Hofstra has standing because it would suffer special harm that is not solely economic in nature.
Analysis
Preliminarily, the Court agrees with Hofstra's contention that it has standing to challenge the lease transfer. "Generally, standing to challenge an administrative action turns on a showing that the action will have a harmful effect on the challenger and that the interest to be asserted is within the zone of interest to be protected by the statute" (Matter of Kogut v Village of Chestnut Ridge, 214 A.D.3d 808, 809 [2d Dept 2023]). Although the respondents assert that the lease transfer merely gives Sands site control, the lease itself provides for rights to pursue the development of a casino, which, as Hofstra asserts, would have a harmful effect on Hofstra. Moreover, the Nassau County Administrative Code contemplates that Hofstra, as a neighboring property owner, has an interest in the lease of the Nassau Hub, as it requires the Planning Commission to provide "written notice by first class mail to the surrounding owners of property within a 150-foot radius of the subject real property" (Nassau County Administrative Code § 11-8.0[b][1]). Pursuant thereto, the Planning Commission sent such written notice to Hofstra (exhibit 3).
Hofstra's contentions that no public hearing to receive public comment was held and that the Planning Commission did not identify what lease(s) it was considering are without merit for the reasons stated in the Court's discussions of the first through sixth causes of action. Hofstra's contention that the Planning Commission failed to review the use and development planned for the property under the lease transfer is also without merit, because as stated in the Court's discussion of the fourth through sixth causes of action, the Nassau County Administrative Code requires the Planning Commission to review proposals to lease property, not the terms of leases themselves (see Nassau County Administrative Code § 11-8.0). With respect to Hofstra's contention that the Planning Commission did not conduct an environmental review, Hofstra has not identified any such obligation of the Planning Commission aside from those relating to OSPAC and SEQRA (discussed infra) and, therefore, this contention is also without merit.
Hofstra's contention that the Planning Commission did not consider a recommendation by OSPAC is also without merit because, as the respondents correctly note, at OSPAC's meeting on April 19, 2023, OSPAC voted in favor of a motion "to NOT transfer the lease because of a lack of specificity to the project." According to the affidavit of Nimmo, the Planning Commission reviewed and considered OSPAC's recommendation against the lease transfer prior to the April 27 meeting. To the extent Hofstra argues that OSPAC's recommendation is defective because it was untimely, this contention is without merit for the reasons stated in the Court's discussion of the ninth cause of action (supra). Hofstra's contention that the Planning Commission did not issue a written recommendation to the County Legislature and County Executive is without merit, as the Planning Commission's recommendation to approve the lease transfer was memorialized in the April 27 resolution. To the extent Hofstra argues that this written recommendation is defective because it was untimely, this contention is without merit for the reasons stated in the Court's discussion of the ninth cause of action (supra).
Hofstra submits no evidence in support of its contention that the Planning Commission did not conduct due diligence or a conflict check regarding Sands or LVS NY HOLDCO 2, LLC. Hofstra also submits no evidence in support of its contention that the proposed lease transfer was subject to improper influence and conflicts of interests because the lease agreement provides for Nassau County to coordinate with Sands and have Sands fund the defense of actions or proceedings. In any event, in response to Hofstra's allegations, the respondents rely on the affidavit of Nimmo, who stated that, prior to the March 2 meeting, each member of the Planning Commission completed a comprehensive conflict check process, and as a result of that process, the Chairman of the Planning Commission voluntarily recused himself due to his position as a Hofstra trustee. Counsel for the respondents further asserts that the boilerplate provisions of the lease do not create a conflict of interest, but rather only prevent the cost of litigation from falling on the Nassau County taxpayers. Counsel further asserts that Sands is not paying Nassau County's fees in this litigation. Under these circumstances, the Court finds Hofstra's contentions to be without merit.
Invalidity of the April 27 and May 22 votes based upon violations of SEQRA (eleventh cause of action)
Petition/Complaint and Memorandum of Law in Support
In the eleventh cause of action, Hofstra alleges that the lease transfer constitutes a Type 1 action under SEQRA, and that the Planning Commission and Nassau County Legislature failed to make a well-documented, well-reasoned negative declaration regarding the lease transfer. Hofstra alleges that, neither during its April 27 meeting nor in the April 27 resolution did the Planning Commission consider or elaborate on, at any reasonable level, any of the factors required to conduct an environmental review under SEQRA. Hofstra alleges that the respondents thereby violated the Nassau County Charter § 1611 and SEQRA.
In the memorandum of law in support of the petition/complaint, counsel for Hofstra asserts that the respondents' position that the lease would have no adverse environmental impact because it involved only legal agreements is belied by the terms of the lease itself, which reveals that Sands has been granted extensive development rights. Moreover, when the Planning Commission voted on April 27 to recommend approval of the proposed lease, the Planning Commission explicitly acknowledged that it did not possess answers to the basic questions contained in the FEAF, but nevertheless urged the Nassau County Legislature to determine that the lease will not have a significant adverse impact on the environment and to issue a negative declaration. Counsel further asserts that this is a Type I action under SEQRA, and SEQRA's modest standard for a positive declaration-that the action may include the potential for at least one significant adverse environmental impact-is met here, even if one only considers either the increased traffic or the large number of people to visit the proposed casino, hotel, and entertainment venue. Hofstra further asserts that the Planning Commission and Nassau County Legislature seek to pursue improper "segmentation" of environmental review by arguing that an environmental impact statement will be required at some later date. Counsel for Hofstra asserts that the lease cannot be disconnected from the obvious environmental impact of the proposed development of a casino, hotel, and entertainment venue.
Memorandum of Law in Opposition
Counsel for the respondents contends that Hofstra does not have standing under SEQRA because SEQRA requires an injury in fact, which Hofstra does not have. Counsel further contends that, in any event, the Planning Commission and the Nassau County Legislature complied with SEQRA, as the lease transfer does not allow Sands to begin any development and, therefore, the Planning Commission's findings of no significant adverse environmental impact were not arbitrary and capricious. Counsel further contends that the determination to evaluate only the environmental impact of the lease transfer, and not any future development, did not constitute impermissible segmentation under SEQRA, as it is largely unclear what the actual development plan will look like, and even whether the development will take place given the numerous approvals required. Lastly, counsel asserts that the Planning Commission and the Nassau County Legislature discussed the potential future development to the fullest extent possible, as the negative declaration identified a casino resort concept, with community spaces, a hotel, a performance venue, restaurants, and a convention space.
Memorandum of Law in Reply
In the memorandum of law in reply, counsel for Hofstra reiterates its contentions that the Planning Commission and the Nassau County Legislature did not comply with SEQRA, as the lease includes use and development rights, regardless of additional permits or licenses that might be needed. Further, counsel contends, the development contemplated by the lease requires a positive declaration, as the increased traffic and increased energy consumption alone would have an environmental impact. Counsel further asserts that the Nassau County Legislature is the "lead agency" under SEQRA and cannot delegate its SEQRA responsibilities to the Town of Hempstead.
Analysis
Hofstra has standing to challenge the SEQRA determination. In order to demonstrate standing to raise a SEQRA challenge, a party must show that the proposed lease transfer "would potentially cause [it] to suffer an 'injury in fact' which falls within the 'zone of interests' sought to be promoted or protected by the statute" (Matter of Bridon Realty Co. v Town Bd. of Town of Clarkstown, 250 A.D.2d 677, 677-678 [2d Dept 1998], quoting Society of Plastics Indus. v County of Suffolk, 77 N.Y.2d 761, 777 [1991]). "Since the zone of interests, or concerns, of SEQRA encompasses the impact of agency action on the relationship between the citizens of this State and their environment," the party challenging the SEQRA determination "must demonstrate a potential injury which is environmental and not solely economic in nature" (Matter of Bridon Realty Co. v Town Bd. of Town of Clarkstown, 250 A.D.2d at 678 [citations and internal quotation marks omitted]). Here, the Court is satisfied that Hofstra has demonstrated that it would potentially suffer an environmental injury by the development described in the new lease (see Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Planning Commn. of City of NY, 259 A.D.2d 26, 32 [1st Dept 1999]; Matter of Bridon Realty Co. v Town Bd. of Town of Clarkstown, 250 A.D.2d at 678).
Turning to the SEQRA determination, it is undisputed that the lease transfer is a Type I action, and is therefore "presumed likely to have a significant adverse impact on the environment. Because SEQRA mandates the preparation of an Environmental Impact Statement (hereinafter EIS) whenever a proposed project may have a significant effect on the environment, an EIS is presumptively required for Type I actions. Nevertheless, where the lead agency, after taking a 'hard look' at relevant environmental concerns, determines that the project will have no significant adverse environmental impacts, and issues a negative declaration to that effect, the EIS may be dispensed with as unnecessary, even for a Type I action" (Matter of Incorporated Vil. of Poquott v Cahill, 11 A.D.3d 536 [2d Dept 2004] [citations omitted]).
"Judicial review of a lead agency's negative declaration is limited to whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination" (Matter of Tampone v Town of Red Hook Zoning Bd. of Appeals, 215 A.D.3d 866, 868 [2d Dept 2023]). "[S]egmentation, which is the dividing for environmental review of an action in such a way that the various segments are addressed as though they were independent and unrelated activities, is contrary to the intent of SEQRA and is disfavored. Nevertheless, segmented review is permissible where the lead agency believes that it is warranted under the circumstances, provided that the agency clearly states its reasons therefor and demonstrates that such review is no less protective of the environment. Additionally, the related actions must be identified and discussed to the fullest extent possible" (Matter of Concerned Citizens for Envt. v Zagata, 243 A.D.2d 20, 22 [3d Dept 1998] [citations omitted]).
In determining whether improper segmentation occurred here, the Court finds Matter of Evans v City of Saratoga Springs (202 A.D.3d 1318 [3d Dept 2022]) persuasive. In Matter of Evans, the respondent City of Saratoga Springs City Council (hereinafter the City Council) proposed converting the zoning of a parcel of land owned by Saratoga Hospital from Urban Residential-1 to Office/Medical Business-2. The City Council performed an analysis under SEQRA and issued a negative declaration on the ground that the amendment to the zoning map would not have an adverse impact on the environment. The City Council then approved the zoning map amendment, changing the zoning designation of the parcel to Office/Medical Business-2. The petitioners thereafter commenced a hybrid proceeding pursuant CPLR article 78 and action for related declaratory relief. The petitioners alleged, among other things, that the City Council improperly segmented the SEQRA review from any future plans by Saratoga Hospital to develop the parcel (see Matter of Evans v City of Saratoga Springs, 202 A.D.3d at 1318-1320). As part of their petition, the petitioners included pages from the FAQ section of a development proposal by Saratoga Hospital. "The FAQ pages detailed that Saratoga Hospital's potential development project included a three-story office building as well as 300 parking spaces" (id. at 1321). In issuing the negative declaration, the City Council declined to speculate and meaningfully evaluate potential environmental impacts of a hypothetical hospital expansion that might result if the change of zoning for the parcel were approved (see id.).
The Third Department held that the City Council improperly segmented its SEQRA review of the change of zoning for the parcel. The Third Department explained that, "although the City Council was not presented with any impending, specific development proposals, rezoning [the parcel] was the first step in the process of eventually developing [the parcel]. In essence, before Saratoga Hospital could move forward with any development and expansion, it needed to acquire the right to do so. The [change of zoning for the parcel] provided just that; it would be the green light to reignite development plans" (id. at 1321-1322). The Third Department held that, under the circumstances, "the potential development of the parcel... was not so attenuated from the [change of zoning for the parcel] that reviewing an expansion of the hospital constituted permissible segmentation" (id. at 1322). The Third Department concluded that it could not "find that the City Council took the requisite hard look at the relevant areas of environmental concern prior to issuing its negative declaration as to the [change of zoning for the parcel] as required by SEQRA, as it did not consider the potential development by Saratoga Hospital" (id.).
Here, the respondents do not deny that the lease transfer was the necessary first step in pursuing a larger project to develop a casino with a hotel and other entertainment facilities. Indeed, at the March 2 meeting, co-counsel for the County explained that "we're currently in the process of negotiating two separate leases with [Sands] on the Coliseum parcels and the hotel parcels. And then the County Legislature will need to approve the assignment of the existing leases from the existing tenant to [Sands], the termination of the leases, and then entering into two separate leases for the "Coliseum parcel" and the "hotel parcels." Co-counsel further explained that Sands "intends to develop what they consider... an integrated resort development on the property that includes community spaces, a four- or five-star hotel, a live music or performance venue, restaurants, meeting and convention space, and a casino" (transcript at p. 55). Moreover, the terms of the lease executed by Zac Hudson, as President of Sands, on April 26, 2023, and by Bruce A. Blakeman, as Nassau County Executive, on May 26, 2023 (hereinafter the new lease), provide:
Section 1.02 Use of Premises
...
(b) New Improvements. Subject to the terms and conditions hereof, Tenant, and those holding by, through or under Tenant, shall have the right to use any portion of the Premises for the following uses: (i) for public entertainment and/or recreation, including, but not limited to, sporting and other athletic events, theatrical, musical and other shows, concerts and entertainment presentations, fairs, and other various entertainment and educational, cultural development or betterment, enlightenment and amusement events for the public, (ii) as a conference facility, hotel, casino, gaming (and/or pari-mutuel wagering and/or lottery) venue, or Entertainment Venue, which may include, among other things, the operation of restaurants, bars and lounges, retail use, event space, and for the operation of souvenir, refreshment and other concessions, (iii) for hospital facilities and medical offices and related medical facilities, which may include, without limitation, biotech facilities, ambulatory care centers and/or laboratory and research facilities, (iv) for "Class A" office space, (v) for residential development and use, and (vi) for any business or commercial purpose incidental to Tenant's onsite business operations, including, but not limited to, grounds, parking areas and facilities, and storage, and, in each case, for all other lawful purposes that are complimentary, related and/or ancillary thereto (the foregoing items (i)-(vi), each, an "Approved New Improvement Use"). Notwithstanding the foregoing to the contrary, Landlord and Tenant agree that if (A) a Tenant Affiliate is awarded a License as a result of the RFA with respect to the Project (the "Gaming License Condition"), then, for so long as the Gaming License Condition is satisfied, Tenant, and those holding by, through or under Tenant, shall use the Premises to pursue the development of the Project which shall include a luxury hotel containing at least 500 rooms and amenities, including a twenty-four (24) hour reception, a concierge, dining, valet parking, a pool, a fitness center and suites, and a licensed casino with an Entertainment Venue containing at least 3,600 seats, all to be consistent with (x) the License Application and (y) the conceptual site plan attached hereto as Exhibit 4, and, at Tenant's option, facilities for any Permitted Use or other lawful use that is complimentary, related and/or ancillary thereto or otherwise to the Project (the "Approved Casino Use") and (B) for so long as the Gaming License Condition is not satisfied, then Tenant, and those holding by, through or under Tenant, shall use the Premises to (1) pursue the development of a mixed-use complex, which shall include (I) a hotel branded as a "Ritz-Carlton", "St. Regis" or other reasonably equivalent branded hotel to either of the foregoing, containing at least 200 rooms and amenities, including a twenty-four (24) hour reception, a concierge, dining, valet parking, a pool, a fitness center and suites, (II) up to 500 residences, which may include workforce housing units as to be further agreed by the Parties and, subject to the provisions of Section 1.02(c), condominium units and/or cooperative units, and (III) an Entertainment Venue containing at least 3,600 seats, and, in addition to the uses set forth in subclauses (I) - (III), at Tenant's option, facilities for any Permitted Use or use complimentary, related and/or ancillary thereto, but the Landlord's consent, in its reasonable discretion, shall be required for uses (iii) or (iv) of the definition of Approved New Improvement Use or (2) pursue a development project with facilities for any Permitted Use, provided such development project shall be subject to Landlord's prior written consent, in Landlord's sole discretion (each of (1) and (2) an "Approved Non-Casino Use"). In connection with any Approved Non-Casino Use, Tenant shall be required to deliver a Proposed Alternate Site Plan to Landlord in accordance with Section 6.03. Notwithstanding anything herein to the contrary, Tenant shall not be permitted to assign or sublet any portion of the Premises, or enter into Severance Leases, prior to a decision in the RFA process that results in the award or denial of a License.(exhibit S).
It is undisputed that the purpose of the lease transfer was to allow Sands to pursue the development described in the new lease. Under these circumstances, by considering only the environmental impact of the transfer of site control, and not the planned development, the Nassau County Legislature engaged in improper segmentation under SEQRA (see Matter of Evans v City of Saratoga Springs, 202 A.D.3d at 1321-1322; Matter of J. Owens Bldg. Co., Inc. v Town of Clarkstown, 128 A.D.3d 1067, 1068-1069 [2d Dept 2015] [holding that, where the respondents sought to acquire the petitioners' property in a condemnation proceeding for the purpose of making drainage improvements in connection with a larger revitalization project, the Town Board was required under SEQRA to consider the environmental concerns raised by the larger revitalization project, not just the drainage improvements]; Matter of Long Is. Pine Barrens Socy. v Town Bd. of Town of Riverhead, 290 A.D.2d 448, 448-449 [2d Dept 2002] [holding that the respondent improperly segmented SEQRA review where there was a proposal to build a golf course and 333 houses, and only the environmental impact of the golf course was considered, stating that the respondent "was obligated to consider the environmental concerns raised by the entire project at the time of the rezoning application, and its failure to do so violated SEQRA"]; Matter of Citizens Concerned for Harlem Val. Envt. v Town Bd. of Town of Amenia, 264 A.D.2d 394, 394 [2d Dept 1999] [holding that the respondent improperly segmented the SEQRA review process where the rezoning at issue "was an integral part of a mining proposal that would have obvious environmental impact" and, as such, the respondent "was obligated to consider (those) environmental concerns at the time of rezoning"]; Matter of Farrington Close Condominium Bd. of Mgrs. v Incorporated Vil. of Southampton, 205 A.D.2d 623, 626 [2d Dept 1994] [holding that a respondent improperly segmented SEQRA review where the respondent considered a proposed park project as consisting only of construction of a parking lot, access roads, and a baseball fields, as those were the only features of the park immediately planned, but "the ultimate development plans for the park anticipated much more"]; cf. Matter of Court St. Dev. Project, LLC v Utica Urban Renewal Agency, 188 A.D.3d 1601, 1603 [4th Dept 2020] ["Here, no specific future use had been identified prior to the acquisition of petitioner's property, and thus respondent was not required to consider the environmental impact of anything beyond the acquisition"]; Matter of GM Components Holdings, LLC v Town of Lockport Indus. Dev. Agency, 112 A.D.3d 1351, 1353 [4th Dept 2013] [rejecting the petitioner's contention in a condemnation proceeding that the respondent improperly segmented SEQRA review where the respondent intended to sell property to a potential developer, but there was no identified purchaser or specific plan for development at the time SEQRA review was conducted]; Matter of Village of Tarrytown v Planning Bd. of Vil. of Sleepy Hollow, 292 A.D.2d 617, 618-622 [2d Dept 2002] [holding that there was no improper segmentation where a negative declaration was issued for the development of a certain parcel of land where any plans to develop other parcels were speculative and hypothetical, particularly in light of a building moratorium and uncertain zoning for those other parcels, and the development of the subject parcel was not the first phase of a larger, unified project]).
As the Nassau County Legislature engaged in improper segmentation by not considering the future development planned by Sands, the Court finds that the Nassau County Legislature did not take the requisite "hard look" at the relevant areas of environmental concern raised by the lease transfer prior to making the negative declaration (see Matter of Evans v City of Saratoga Springs, 202 A.D.3d at 1322; Matter of Citizens Concerned for Harlem Val. Envt. v Town Bd. of Town of Amenia, 264 A.D.2d 394-395). Accordingly, the petition must be granted, and the negative declaration, the Planning Commission's April 27 vote, the Planning Commission's April 27 resolution, the Nassau County Legislature's vote on May 22 to approve the new lease, and the new lease must be annulled, and the matter remitted to the Planning Commission and the Nassau County Legislature for the issuance of a positive declaration and the preparation of an EIS that considers the environmental impact of the development outlined in Section 1.02(b) of the new lease (see 6 NYCRR 617.3[a]; see generally Matter of Evans v City of Saratoga Springs, 202 A.D.3d at 1322; Matter of Sierra Club v Martens, 158 A.D.3d 169, 178 [2d Dept 2018]; Matter of Youngewirth v Town of Ramapo Town Bd., 155 A.D.3d 755, 762 [2d Dept 2017]; Matter of Green Earth Farms Rockland, LLC v Town of Haverstraw Planning Bd., 153 A.D.3d 823, 828 [2d Dept 2017]; Matter of Long Is. Pine Barrens Socy. v Town Bd. of Town of Riverhead, 290 A.D.2d at 448; Matter of Omni Partners v County of Nassau, 237 A.D.2d 440, 442-443 [2d Dept 1997]).
Denial of Access to Records (twelfth cause of action)
Petition/Complaint and Memorandum of Law in Support
In the twelfth cause of action, Hofstra alleges that the FOIL respondents violated the Freedom of Information Law by failing to produce all of the records sought in the FOIL requests, failing to properly invoke any exemptions under FOIL, and failing to provide a particularized and specific justification for withholding the requested records from disclosure under FOIL.
In the memorandum of law submitted in support of the petition/complaint, counsel for Hofstra asserts that, in March 2023, Hofstra submitted to the FOIL respondents requests seeking, among other things, all documents concerning the proposed lease, all documents concerning any proposal by Sands regarding the property at the Nassau Hub, and various categories of communications, including communications between Nassau County personnel or entities and representatives of Sands. The FOIL respondents did not produce a single record sought. Counsel for Hofstra then submitted appeals, which were granted in part and denied in part. In denying Hofstra's FOIL requests, the FOIL appeal letter invoked Public Officers Law § 87(2)(c), which provides that an agency may deny access to records or portions thereof that, if disclosed, would impair present or imminent contract awards or collective bargaining negotiations. Counsel asserts that the FOIL respondents did not meet their burden of showing that the requests fell within section 87(2), because no other bidder existed for the lease of the Nassau Hub. Counsel further asserts that it is inconceivable that only one email was responsive to Hofstra's request for all communications concerning the proposed lease.
Memorandum of Law in Opposition
In the memorandum of law in opposition, counsel for the respondents first asserts that, on July 6, 2023, the FOIL respondents produced to Hofstra's counsel responsive documents that had previously been withheld on the basis that the lease negotiations were ongoing. Second, counsel asserts that the FOIL respondents' initial withholding of documents was proper under Public Officers Law § 87(2)(c) because disclosure of the draft lease's terms before Nassau County and Sands reached an agreement would have impaired contract negotiations with Sands and, if those negotiations fell through, future negotiations with potential lessees of the Nassau Hub. Third, counsel asserts that the FOIL respondents conducted a diligent search for unprotected, responsive documents, and Hofstra's contention that more documents must have existed is speculative.
Memorandum of Law in Reply
In the memorandum of law in reply, counsel for Hofstra asserts that the FOIL respondents could not cure their FOIL violations by their late production of materials on July 6. Counsel asserts that the mootness question raised by the late production of papers is a novel issue with important public policy implications, and therefore this Court should resolve whether the FOIL respondents' production was exempted while the lease was being negotiated.
Analysis
"Where a petitioner receives an adequate response to a FOIL request during the pendency of his or her CPLR article 78 proceeding, the proceeding should be dismissed as moot because a determination will not affect the rights of the parties" (Matter of Edmond v Suffolk County, 197 A.D.3d 1297, 1298 [2d Dept 2021] [internal quotation marks omitted]). Here, Hofstra does not dispute in its reply memorandum of law that it has now received the documents requested (see id. at 1299). Rather, Hofstra asserts that the Court should resolve whether the FOIL respondents' production was exempted while the lease was being negotiated as an exception to the mootness doctrine. The Court declines to do so.
Although the merits of Hofstra's FOIL contentions are moot, Hofstra's request for attorneys' fees pursuant to Public Officers Law § 89(4)(c) is not moot (see Matter of Kohler-Hausmann v New York City Police Dept., 133 A.D.3d 437, 437-438 [1st Dept 2015] ["Although petitioner effectively concedes that the merits of her petition are moot as a result of NYPD's voluntary disclosure, petitioner's claim for attorney's fees and other litigation costs is not moot"]).
"In order to create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL, the Legislature has provided for the assessment of an attorney's fee and other litigation costs in FOIL proceedings" (Matter of Edmond v Suffolk County, 197 A.D.3d at 1299 [internal quotation marks omitted]). "The Public Officers Law authorizes an award of attorneys' fees where the petitioner 'has substantially prevailed' in the FOIL proceeding and the agency either lacked a reasonable basis for denying access to the requested records or 'failed to respond to a request or appeal within the statutory time'" (Matter of Madeiros v New York State Educ. Dept., 30 N.Y.3d 67, 78 [2017], quoting Public Officers Law § 89[4][c][i], [ii]). "A petitioner has 'substantially prevailed' within the meaning of Public Officers Law § 89(4)(c) when the commencement of the CPLR article 78 proceeding ultimately succeeds in obtaining the records responsive to the FOIL request, whether by court order or by voluntary disclosure" (Matter of Edmond v Suffolk County, 197 A.D.3d at 1299).
Here, Hofstra "substantially prevailed" within the meaning of Public Officers Law § 89(4)(c) because the commencement of this proceeding/action caused Hofstra to ultimately succeed in obtaining the records sought (see Matter of Edmond v Suffolk County, 197 A.D.3d at 1300 [holding that the petitioners "substantially prevailed" where the documents requested were provided by the respondents with their papers filed in opposition to the petition]; Matter of McDivitt v Suffolk County, 136 A.D.3d 896, 897 [2d Dept 2016] ["Here, inasmuch as the petitioner eventually received the documents it sought, it 'substantially prevailed' in the case"]).
The respondents lacked a reasonable basis for denying Hofstra's FOIL request. "FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 N.Y.2d 562, 566 [1986]). "Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" (id. at 566). Here, the respondents denied Hofstra's FOIL requests pursuant to Public Officers Law § 87(2)(c), which permits withholding materials which, "if disclosed, would impair present or imminent contracts awards or collective bargaining negotiations" (Public Officers Law § 87[2][c]).
The respondents failed to demonstrate that the requested materials fall squarely within Public Officers Law § 87(2)(c). In the letter responding to Hofstra's appeal of the denial of its FOIL requests, the County of Nassau Office of the County Attorney stated:
"To the extent that there are records concerning a transfer, assignment, or negotiation of a new lease, your request is denied. Public Officers Law § 89(2)(b) [sic] provides that an agency may deny access to a record where 'if disclosed would impair present or imminent contract awards or collective bargaining negotiations.' Here, in a circumstance where the County may be actively engaged in negotiating contract terms, disclosure would certainly impair the County's bargaining leverage and, as a result, your request is denied."(exhibit P).
The County's response, above, appears to be based on a misreading of Public Officers Law § 89(2)(c). The statute provides exemptions relating to "present or imminent contract awards" and "collective bargaining negotiations" (Public Officers Law § 89[2][c]); not contract negotiations. The negotiation of the lease at issue here cannot be considered a "present or imminent contract award[ ]," as there was no competitive bidding process (see Matter of Verizon NY, Inc. v Bradbury, 40 A.D.3d 1113, 1115 [2d Dept 2007] [holding that certain documents did not fall squarely within the ambit of Public Officers Law § 89(2)(c) where there were no competitors with Verizon for the issuance of a sole cable television franchise in the Village of Ryebrook]; see generally Matter of Acme Bus Corp. v County of Suffolk, 136 A.D.3d 896, 897-898 [2d Dept 2016]; Matter of Laborers' Intl. Union of N. Am., Local No. 17 v New York State Dept. of Transp., 280 A.D.2d 66, 68-69 [3d Dept 2001]; Matter of Cross-Sound Ferry Servs. v Department of Transp., 219 A.D.2d 346, 349 [3d Dept 1995]). Neither party contends that collective bargaining was at issue for purposes of Public Officers Law § 87(2)(c).
Based on the foregoing, Hofstra is entitled to an award of reasonable attorneys' fees and litigation costs incurred on the twelfth cause of action (see generally Matter of Ateres Bais Yaakov Academy of Rockland v Town of Clarkstown, 218 A.D.3d 462 [2d Dept 2023] [determining that the petitioner was entitled to reasonable attorneys' fees and litigation costs in connection with the FOIL cause of action where the petitioner substantially prevailed and the respondent had no reasonable basis for denying access to responsive documents]).
Conclusion
The respondents violated both the Open Meetings Law and SEQRA in approving the lease transfer. Either of these violations, independently, is a sufficient ground to annul the Planning Commission's April 27, 2023 vote, the Planning Commission's April 27, 2023 resolution to recommend approval of the lease transfer to the Nassau County Legislature, the May 22, 2023 vote of the Nassau County Legislature to approve the lease transfer, and the lease executed by Sands on April 26, 2023, and by the Nassau County Executive on May 26, 2023. The matter must be remitted to the Planning Commission and the Nassau County Legislature to conduct a new public hearing in accordance with all relevant statutes, including the Nassau County Administrative Code and the Open Meetings Law, as discussed herein, and for the issuance of the positive declaration pursuant to SEQRA and the preparation of an EIS, taking into account the development described in the new lease.
Additionally, Hofstra has demonstrated its entitlement to costs and reasonable attorneys' fees incurred on the fourth, fifth, and sixth causes of action pursuant to Public Officers Law § 107(2), and on the twelfth cause of action pursuant to Public Officers Law § 89(4)(c).
The Court does not grant or deny any declaratory relief at this juncture. "In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those which seek to recover damages and declaratory relief, on the other hand. The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment. Thus, where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for this Supreme Court to summarily dispose of those causes of action" (Matter of Kelly v Farmingdale State Coll., State Univ. of NY, 215 A.D.3d 748, 750-751 [2d Dept 2023] [citations and internal quotation marks omitted]). Here, as no motions have been filed with regard to those portions of the petition/complaint which seek declaratory relief, no declaratory relief will be granted or denied at this time.
Based on the foregoing, it is hereby
ORDERED that so much of the petition/complaint as seeks to annul the vote of the Nassau County Planning Commission on April 27, 2023, to recommend approval of the lease transfer to the Nassau County Legislature is GRANTED, and the vote of the Nassau County Planning Commission on April 27, 2023, is ANNULLED; and it is further, ORDERED that so much of the petition/complaint as seeks to annul the resolution of the Nassau County Planning Commission dated April 27, 2023, is GRANTED, and the resolution of the Nassau County Planning Commission dated April 27, 2023, is ANNULLED; and it is further, ORDERED that so much of the petition/complaint as seeks to annul the vote of the Nassau County Legislature on May 22, 2023, approving the lease transfer, is GRANTED, and the vote of the Nassau County Legislature on May 22, 2023, is ANNULLED; and it is further, ORDERED that the lease executed by Zac Hudson, as President of Sands, on April 26, 2023, and by Bruce A. Blakeman, as Nassau County Executive, on May 26, 2023 (NYSCEF No. 93) is ANNULLED; and it is further, ORDERED that so much of the petition/complaint as seeks to annul the negative declaration issued by the Nassau County Legislature pursuant to SEQRA is GRANTED, and the negative declaration is ANNULLED; and it is further, ORDERED that the matter is remitted to the Planning Commission and the Nassau County Legislature (1) to conduct a proper public hearing in accordance with all relevant statutes and rules, including the Nassau County Administrative Code and the Open Meetings Law as discussed herein, and (2) for the issuance of a positive declaration pursuant to SEQRA and for the preparation of an Environmental Impact Statement that considers the environmental impact of the new improvements described in Section 1.02(b) the new lease; and it is further, ORDERED that within 30 days after the date of this Decision and Order, counsel for Hofstra shall submit to the Court a memorandum regarding the reasonable attorneys' fees and costs incurred in connection with the fourth, fifth, sixth, and twelfth causes of action; and it further, ORDERED that any response by the respondents to Hofstra's memorandum regarding reasonable attorneys' fees and costs is due 14 days after the date that Hofstra's memorandum is uploaded to NYSCEF.
The parties' remaining contentions have been considered and do not warrant discussion.
This constitutes the Decision and Order of this Court.