A week after attorney Dave Gordon sued the Lloyd Town Board on behalf of his clients Madeline Labriola and Frances Raucci on issues surrounding the mixed use Highland Square project on Route 299; he filed a second lawsuit, this time against the Planning Board, alleging they abandoned their rightful jurisdiction over the project’s site plan.
On June 24 the Planning Board voted against approval of the Highland Square project 4-3 but on June 28, in a complete reversal, approved the project 5-0, with two board members absent.
In this new lawsuit Gordon contends that the Planning Board’ reversal to approve the project was done under the mistaken belief they did not have the jurisdiction to review the merits of the project. Gordon, instead, insists the Planning Board does have jurisdiction in this matter since the Town Board did not pass any resolution “restricting the Planning Board’s site plan or subdivision review authority over any category of development projects”
Gordon wrote that “under New York State and Town of Lloyd laws, site plan and subdivision review jurisdiction includes the authority to review and determine whether characteristics of the development, including size, height, density, visual characteristics and induced traffic, among many other characteristics, are consistent with the surrounding community.”
Gordon added that under NYS Town Law [274-a] there is no provision for any sharing or division of [site plan review] authority and responsibility between the Planning and Town Boards.”
“Once a Town Board delegates approval authority over some or all site plan or subdivision applications to a Planning Board, the Planning Board has full authority to review such applications,” he wrote. “While the Town Board may remove the Planning Board’s authority entirely, it may not reserve portions of such authority to itself, or divide such review authority over an individual application between itself and the Planning Board.”
When the revote on the project was held, several members of the Planning Board, who had originally voted no, cited the reason for their approval vote was because of local law #2. This Town Board approved law changed the parcel’s zoning to a Planned Unit Development [PUD].
Gordon pointed out, however, that this law does not “diminish” the Planning Board’s authority over the Highland Square project.
“Zoning laws set forth the maximum development allowed on a particular parcel, which the Planning Board has authority to pare as necessary to protect users of the site and the surrounding community,” Gordon stated.
In the petition Gordon wrote that the Planning Board “questioned and criticized” several aspects of the proposed project – its size, height, density and failure to provide space for trash removal. Gordon stated that nothing new about the project arose in the 4 days between the two Planning Board votes.
“An agency’s determination enjoys a presumption of validity [and] an agency may not overturn its own determination absent new information,” he stated.
In essence, Gordon contends that since the Planning Board did not discuss or publish any new reason for their change of heart, nor indicate there was anything substantially different that arose about the project, there was no justification for the Planning Board to reverse their original no vote on the project. That reversal, according to Gordon, was “arbitrary and capricious.” He stated that the Planning Board was only acting on the perception that they did not have the authority to review and perception is not sufficient “to reverse its prior determination on the facts and the law.”
Gordon also noted that the Planning Board’s original no vote indicated that after their 6 month review of the environmental aspects of the project, they did not accept the Town Board’s environmental Findings Statement on the project. He also pointed out that the Planning Board offered no new environmental information in the 4 day interim between the 2 votes that would justify their acceptance of the Town Board’s Findings statement. He said the only thing that changed is their interpretation of their own legal authority, which Gordon contends is not supported by law.
“For whatever reasons they [Planning Board] made an egregious error regarding their own legal authority…They came up with a new legal theory afterwards and that’s the basis of their actions on June 28 in approving these resolutions and it’s the basis of our lawsuit,” Gordon said in a following interview.
In his summary Gordon is asking the court to annul both the subdivision and site plan approvals the Planning Board gave the project and instead, reinstate the original rejection of the project that the Planning Board did on June 24.
Gordon indicated he will be seeking to have the developer stop all work, including the land clearing that is presently underway on the site, by filing a preliminary injunction in Supreme Court in Kingston this week. He said a temporary restraining order may be the quickest legal avenue to achieve that goal.