Opinion
Index No. 904705-22
01-09-2024
Lorraine Thompson, VALERIAN MASAO, KERRY MCCAREY, JOHN WALLACE, AND KAREN JAMACK, DANIEL FIATO AND NATASHA FIATO, NATHANIEL GRAY, DANIEL MAIER AND JOANNE MAIER, KIRK RHATIGAN AND RACHEL APUNTE, NICK ESPOSITO, TIMOTHY GROSS AND SUSAN GROSS, GERTRUDE PRATER, CHRISTINE DELSIGNORE, JOHN BOHL AND KATHLEEN BOHL, BARBARA RISCAVAGE, ANGELA VANFONDA, PHILLIP ROWLANDS AND [SYLVIA] ROWLANDS, EBEN COREY AND JANINE GOETZ, AMY MUSIKER, LORI DEMPH, STEVEN KONAS AND SUSAN KONAS, LYNNE MCLEER, AND SHERI CANFIELD, Petitioners, v. Albany Port District Commission, TOWN OF BETHLEHAM PLANNING BOARD, TOWN OF BETHLEHAM ZONING BOARD OF APPEALS, AND TOWN OF BETHLEHAM, Respondents.
R. Christopher Dempf, Esq. Tobin and Dempf, LLP Attorneys for Petitioners Lorraine Thompson, Valerian Masao, Kerry Mccarey, John Wallace, and Karen Jamack, Daniel Fiato and Natasha Fiato, Nathaniel Gray, Kirk Rhatigan and Rachel Apunte, Nick Esposito, Timothy Gross and Susan Gross, Gertrude Prater, Christine Delsignore, John Bohl and Kathleen Bohl, Barbara Riscavage, Angela Vanfonda, Eben Corey and Janine Goetz, Amy Musiker, Lori Demph, Steven Konas And Susan Konas, Lynne Mcleer, and Sheri Canfield Sylvia Rowlands and Phillip Rowlands Petitioners, Pro Se Daniel Maier and Joanne Maier Petitioners, Pro Se Patrick Jordan, Esq. Attorney for Respondent the Albany Port District Commission Thomas A Shepardson, Esq. Whiteman Osterman & Hanna, LLP Outside Counsel for Respondent the Albany Port District Commission Mark T. Sweeney, Esq. Attorney for Respondents Town of Bethlehem Planning Board, Town of Bethlehem Zoning Board of Appeals and Town of Bethlehem
Unpublished Opinion
R. Christopher Dempf, Esq.
Tobin and Dempf, LLP
Attorneys for Petitioners Lorraine Thompson, Valerian Masao,
Kerry Mccarey, John Wallace, and Karen Jamack, Daniel Fiato and Natasha Fiato, Nathaniel Gray, Kirk Rhatigan and Rachel Apunte, Nick Esposito, Timothy Gross and Susan Gross, Gertrude Prater, Christine
Delsignore, John Bohl and Kathleen Bohl, Barbara Riscavage, Angela Vanfonda, Eben Corey and Janine Goetz, Amy Musiker, Lori Demph, Steven Konas And Susan Konas, Lynne Mcleer, and Sheri Canfield
Sylvia Rowlands and Phillip Rowlands
Petitioners, Pro Se
Daniel Maier and Joanne Maier
Petitioners, Pro Se
Patrick Jordan, Esq.
Attorney for Respondent the Albany Port District Commission
Thomas A Shepardson, Esq.
Whiteman Osterman & Hanna, LLP
Outside Counsel for Respondent the Albany Port District Commission
Mark T. Sweeney, Esq.
Attorney for Respondents Town of Bethlehem Planning Board, Town of Bethlehem Zoning Board of Appeals and Town of Bethlehem
James H. Ferreira, J.
Hon. James H. Ferreira, Acting Justice of the Supreme Court
By Decision and Order/Judgment dated July 18, 2023, this Court dismissed petitioners' CPLR article 78 proceeding challenging certain resolutions and findings made by respondents Town of Bethlehem Planning Board (Planning Board) and Town of Bethlehem Zoning Board of Appeals (Zoning Board) pursuant to the New York State Environmental Quality Review Act (SEQRA) (see Environmental Conservation Law § 08-0101 et. seq.) and its implementing regulations (see 6 NYCRR Part 617), with respect to the project known as the Albany Port District Commission's (District) project for the Marmen/Welcon Off Shore Wind Tower Manufacturing Plant (Wind Plant project), to be built on the Albany Port District Commission's (APDC) expansion property located along River Road in the Town of Bethlehem, New York. The facts of this action are fully set forth in the Court's July 18, 2023 Decision and Order/Judgment. Briefly, the Court found that that petitioners' challenges to the Zoning Board's determination were untimely. The Court also found that the Planning Board's SEQRA determinations, which were based on studies, methodology, and tables and illustrations summarizing data, were sufficient to allow informed consideration and comment on the issues that petitioners raised, and that the Planning Board did not act arbitrarily or capriciously in rendering its determinations. Rather, the Court found that the Planning Board complied both procedurally and substantively with the requirements of SEQRA in that it identified the relevant environmental concerns, took a 'hard look' at them, and considered a reasonable range of corresponding mitigation measures and alternatives. The represented petitioners now move for leave to "renew, reargue, and to otherwise settle the record" pursuant to CPLR 2221. Respondents oppose petitioners' motion.
The Town submitted its administrative record (AR) with its answer. The AR, which consists of over 14,500 pages, was uploaded to the New York State Courts Electronic Filing System (NYSCEF) system in more than 48 separate volumes.
Pro se petitioners Daniel Maier, Joanne Maier, Sylvia Rowlands, and Phillip Rowlands have neither moved nor joined in the relief requested.
"[A] motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision" (Peak v Northway Travel Trailers, 260 A.D.2d 840, 842 [3d Dept 1999]; accord Loris v S & W Realty Corp., 16 A.D.3d 729, 730 [3d Dept 2005]; see Matter of Reed v Annucci, 175 A.D.3d 1700, 1701 [3d Dept 2019]; CPLR 2221[d] [2]). Such a motion "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" (Degraw Constr. Group, Inc. v McGowan Bldrs., Inc., 178 A.D.3d 772, 773 [2d Dept 2019], appeal dismissed 178 A.D.3d 772 [2d Dept 2019][internal quotation marks and citations omitted]). A motion to renew, on the other hand, must be based upon" 'new facts not offered on the prior motion that would change the prior determination... and... reasonable justification for the failure to present such facts on the prior motion'" (Webber v Scarano-Osika, 94 A.D.3d 1304, 1305 [3d Dept 2012], quoting CPLR 2221 [e] [2], [3]; see Iannotti v Two Plus Four Mgt. Co., 209 A.D.3d 1248, 1249 [3d Dept 2022]).
Petitioners' arguments in support of their motion can be summed up as follows:
1) the Court, in its July 18, 2023 Decision and Order/Judgment, failed to make sufficient findings regarding the distances from petitioners' residences to the project, which must include the NIMO parcel, upon which a parking lot is intended to be constructed;
2) after the Decision and Order/Judgment was issued, petitioners became aware that several nearby properties may enjoy deeded rights to the Hudson River, and thus, are entitled to notice;
3) the Zoning Board's determination that petitioners are not adversely affected by the project is in error since several of the properties are under 600 feet from the APDC's property line;
4) a video recording of the March 16, 2022 Zoning Board hearing was erroneously omitted from the record, which reveals the Zoning Board's incorrect assertion that no residences are located within 600 feet of the APDC property line;
5) the Zoning Board received false information that there was no active or closed solid waste management facility on APDC or neighboring property;
6) the Zoning Board did not address the impacts of coal ash;
7) Proposed Environmental Protection Agency (EPA) rules (Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Legacy CCR Surface Impoundments, 88 FR 31982-01), regarding methods for the containment of coal ash were not considered by respondents, and should have been considered by this Court; and
8) Petitioners also seek to have this Court consider documents and affidavits not submitted with respect to the underlying Decision and Order/Judgment, including the affidavit of professional engineer Mark C. Jacobson, sworn to August 18, 2023.
Mr. Jacobson submits his affidavit to "clarify certain information set forth in the survey and map [his] office prepared and attached to the September 30, 2022 affidavit of Michael Groff" (NYSCEF No. 316, ¶1). Mr. Jacobson provides list of distances to the NIMO property from certain residences owned by petitioners located near the project.
In opposition to petitioners' motion, respondents argue that petitioners have failed to establish that this Court overlooked or misapprehended any fact or law when it issued its July 18, 2023 Decision and Order/Judgment. Respondents, likewise, argue that petitioners failed to present new facts not offered on the prior motion that would change the prior determination, and a reasonable justification for their failure to present such facts on the prior motion. To the extent that petitioners seek "resettlement" of the underlying administrative record, respondents argue that that argument should have been made, if at all, before the return date of the July 18, 2023 Decision and Order/Judgment.
Upon review of the papers in support of their motion, the Court finds that petitioners have failed to identify an issue of fact or law that this Court is alleged to have overlooked or misapprehended in its prior Decision and Order/Judgment. While petitioners assert that the Court did not make sufficient distance findings from petitioners' properties, that assertion is belied by the July 18, 2023 Decision and Order/Judgment. Specifically, the Court expressly referred the reader to certain maps, located in the record at NYSCEF Nos. 84 and 130, for a visual layout of the proposed projects in relation to the APDC's, NIMO's, CSX's, and petitioners' properties. Based on respondents' map, the closest residential property to the site, located along Old River Road, is approximately 360 feet from APDC's property line (see NYSCEF No. 84; NYSCEF No. 49, page 247). The Court also recognized petitioners' map, attached to the affidavit of licensed New York State Land Surveyor Michael Groff (see NYSCEF No. 130), which appears to depict the project site along the shores of the Hudson River together with an 18.40-acre parcel owned by NIMO abutting the site to its west. Running parallel to NIMO's land to its west, is a strip of land owned by CSX. Using the scale set forth on the map, Mr. Groff appears to have drawn a 200-foot boundary line from CSX's most westerly property line. Based on this interpretation, certain petitioners claim to reside or own property within 200 feet of the project site. Contrary to petitioners' assertions, the Court also recognized that the project anticipated using the NIMO property for access and as a parking area, and recognized that several of petitioner's properties are located within 200 feet of the of the NIMO parcel (see NYSCEF No. 25, page 68, NYSCEF No. 307, page 4).
Petitioners seem to intimate that the distance of their residences from the project mandates that respondents provide them with certain notices. However, this Court rejected petitioners' challenges of improper and/or inadequate notice in its July 19, 2023 Decision and Order/Judgment.
Likewise, petitioners fail to establish, or even allege, that this Court overlooked or misapprehended an issue of fact or law when it dismissed, as untimely, petitioners' challenges to the Zoning Board's resolution, issued on April 6, 2022 and filed with the Town Clerk on April 7, 2022. Thus, petitioners' challenges to the substance of the material presented to the Zoning Board - including the material presented to it, whether petitioners are adversely affected by the project, and the effects of coal ash - are not properly part of this motion seeking to reargue this Court's prior Decision and Order/Judgment. Finally, while petitioners fault this Court for not considering the effects of proposed EPA rules not yet adopted, the proposed rules are not the current state of the law, and petitioners have failed to both 1) present authority that authorizes this Court to rely on agency rules which are not yet adopted, and 2) set forth how the Court mistakenly arrived at its conclusion by not considering such proposed rules. Accordingly, petitioners' motion, insofar as it seeks reargument pursuant to CPLR 2221 (d), is denied.
Similarly, that a certain video recording of the Zoning Board's March 16, 2022 hearing was omitted from the administrative record is not properly a part of petitioners' motion. In any event, written minutes of the March 16th hearing were made a part of the record, and at no time prior to the Court's July 18, 2023 Decision and Order/Judgment did petitioners object to the contents of the administrative record (see NYSCEF No. 67, page 292). To the extent that petitioners seek to "resettle" the administrative record, petitioners had ample opportunity to do so upon the filing of respondents' answer and administrative record. While petitioner contends that the absence of this video recording is "significant," petitioners failed to seek to include it in the administrative record prior to the issuance of the Decision and Order/Judgment (NYSCEF No. 313, ¶11). In any event, since the minutes of the March 16, 2022 hearing were made part of the record, the omission of the recording of the hearing from the administrative record did not prevent this Court from rendering determination on the petition, specifically, that petitioners' claims against the Zoning Board were untimely (see Matter of Fama v Mann, 196 A.D.2d 919, 920 [3d Dept 1993], lv denied 82 N.Y.2d 662 [1993]).
To the extent that petitioners' motion can be read to be seeking renewal pursuant to CPLR 2221 (e), petitioners fail to establish that any of the allegedly "new" facts would change this Court's July 18, 2023 determination, together with a reasonable justification for their failure to previously present such facts. While petitioners assert that several nearby properties" may" enjoy deeded rights to the Hudson River, petitioners have failed to establish any justification for their failure to previously submit such information to the Court and, in any event, petitioners' purpose in presenting these vague assertions - to establish that certain property owners may require notice of the project - is irrelevant since the Court rejected petitioners' challenges to notice, finding that respondents complied with statutory notice requirements (see NYSCEF No. 307, page 42).
Finally, petitioners submit the affidavit of professional engineer Mark C. Jacobson, sworn to August 18, 2023, to provide a more detailed explanation of the map attached to Mr. Geoff's affidavit that was referenced in this Court's July 18, 2023 Decision and Order/Judgment. Mr. Jacobson opines regarding the distances of petitioners' residences to the project and to the NIMO parcel. However, petitioners provide no assertion that this "new" information would change this Court's July 18, 2023 determination, and provide no justification for their failure to previously present such facts. Accordingly, petitioners' motion, insofar as it seeks renewal pursuant to CPLR 2221 (e), is denied.
Counsel also asks this Court to consider certain "historical coal ash location maps" (NYSCEF No. 313, ¶ 27). These maps are not attached to petitioners' submission. In any event, petitioners fail to establish the requirements to permit such consideration under CPLR 2221, and fail to establish that this information warrants changing the Court's prior determination.
Accordingly, it is hereby
ORDERED that petitioners' motion, pursuant to CPLR 2221 (d) and CPLR 2221 (e), is denied in its entirety.
This constitutes the Decision and Order of the Court, which will be uploaded to the New York State Court's Electronic Filing System (NYSCEF). Counsel is advised of 22 NYCRR 202.5-b (h) (2) relating to notice of entry.
SO ORDERED AND ADJUDGED
Papers Considered:
NYSCEF Documents Numbered 25, 49, 67, 84, 130, 307-309, 312-317, 325-327, 329-332, 334-337.