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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SCHENECTADY
In the Matter of the Application of
FRIENDS OF THE STANFORD HOME, MARSHA
POMPILLIO AND CHARLES W. LESTER III,
Petitioners,
VERIFIED PETITION
For a judgment pursuant to Article 78 of the CPLR
Index No. 2010-2082
- Against -
PLANNING BOARD OF THE TOWN OF
NISKAYUNA AND HIGHBRIDGE
DEVELOPMENT BR LLC
Respondents.
PETITIONERS, for their complaint against the respondents, make the following allegations:
SUMMARY OF PROCEEDING
1. This is an action pursuant to Article 78 of the CPLR, seeking to vacate and annul a
July 26, 2010 determination of the Niskayuna Planning Board to approve a site plan revision to
relocate and partially demolish a highly significant historical building called the Stanford Home
without first conducting a legally-required review of the project under State Environmental laws.
An injunction to stop Highbridge Development BR LLC from commencing the relocation
process is also requested. Section 7803 of the CPLR allows the courts to review and set aside a
decision by a body or officer where the body or officer: 1) failed to perform a duty enjoined upon
it by law; 2) proceed without, or in excess of, jurisdiction; 3) made a determination in violation
of lawful procedure, or in violation of law, or was arbitrary and capricious, or an abuse of its
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discretion; or 4) made a determination, following a hearing, that was unsubstantiated by the
evidence produced.
2. The Niskayuna Planning Board failed to perform a duty enjoined upon it by law when it
chose not to follow or even consider procedures required by the State Environmental Quality
Review Act, Article 8 of the New York State Environmental Conservation Law, and 6 NYCRR
Part 617, (hereinafter SEQRA), and Chapter 95 of the Niskayuna Town Code before
approving the site plan revision. The application of the SEQRA law is a mandatory,
nondiscretionary obligation and should have been performed by the Planning Board before
approving the project. Furthermore, there is evidence that, even though the Town Planner and
Planning Boards approval ofHighbridges application created the appearance that they
conducted a SEQRA review of the application, there was in fact no meaningful attempt to review
the Highbridge project using SEQRA procedures.
3. The Planning Board exceeded its jurisdiction and ignored State law and Town Code by
mischaracterizing the action under consideration in order to approve the site plan revision
without considering mandated NY State SEQRA laws. The Planning Board cannot excuse itself
from adherence to NY State laws and Town Code by merely branding an action as a minor
revision when it is by definition presumed to be a Type I action warranting a full SEQRA
review. The Court of Appeals of the State of New York has said, The mandate that agencies
implement SEQRA's procedural mechanisms to the "fullest extent possible" reflects the
Legislature's view that the substance of SEQRA cannot be achieved without its procedure, and
that departures from SEQRA's procedural mechanisms thwart the purposes of the statute.
Edgar King, Individually & as Supervisor of Northumberland, et al. v. Saratoga County Board of
Supervisors, 89 N.Y.2d 341, 675 N.E.2d 1185, 653 N.Y.S.2d 233 (1996). By describing the
relocation and partial demolition of the Stanford Home as a minor revision to a previously
approved site plan, the Planning Board thwarted and purposefully ignored both the spirit and
express requirements of the SEQRA Laws and Town Code and thus placed itself above State law
in contravention of its role as a local SEQRA-bound authority.
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review of a significantly different site plan, the Planning Board never explored, requested or
produced evidence relating to the 2010projects impact on the Stanford Homes historical and
archaeological character, never obtained independent assessment of said impacts, and never
assessed the project in light of the considerations and requirements listed in 6 NYCRR 617.7 and
other relevant SEQRA laws and Town Code.
THE PARTIES
Petitioners-Plaintiffs
6. Friends of Stanford Home consists of historians, archaeologists and local citizens, all of
whom share an appreciation for the significant historic and aesthetic value of the Stanford
Home.
7. Friends of Stanford Home has been a vigorous advocate for preserving the Stanford
Home in a way that evokes the grandeur and history of the building, which has housed some of
the most prominent figures in American History. (Appendix L)
8. Individual Petitioners are either members of the Friends of Stanford Homes or are
directly impacted by the changes to the Stanford Home due to their immediate proximity.
9. Respondent Town of Niskayuna Planning Board approved a site plan review application
by Highbridge Development BR LLC on July 26, 2007 without first conducting a review of the
application in compliance with the New York State Environmental Quality Review Act
(SEQRA) and related portions of New York Town Code.
10. Respondent Highbridge Development BD LLC has been developing the 12.32 acre
Stanford Crossing site as retail shopping plaza based upon a site plan approved by the Town of
Niskayuna in 2007. It filed a modification to that plan on June 10, 2010 and received approval
to move, partially demolish the Stanford Home and lower it from its majestic vista, and is
currently preparing to begin that work.
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STANDING
11. All petitioners in the current action were acknowledged to have standing by Schenectady
Country Supreme Court and the Appellate Division, Third Department, in prior actions related
to this case in 2007-8.
12. Notwithstanding the res judicata determination of standing, all petitioners also have a
sufficiently cognizable claim stake in the outcome so as to case the dispute in a form
traditionally capable of judicial resolution. (See Matter of Graziano v. County of Albany, 3
NY3d 475, 479 [2004]).
13. For an organization such as Friends of the Stanford Home, to establish standing it must
show that (1) at least one of its members would have standing to sue; (2) that it is representative
of the organizational purposes of it asserts and (3) the case does not require the participation of
individual members (see Matter of State Psychiatric Assn. Inc. v. Mills, 29 AD3d 1058 [2006]).
14. Friends of the Stanford Home member Marsha Pompillio is an adjoining landowner to
whom notices of public hearings regarding this project were sent indicating and to whom offers
were made by Highbridge Development or its agents to mitigate the effects of construction on
her property.
15. Charles W. Lester III lives directly across from the Stanford Home and faces the
property, less than 300 feet away. He is the third generation of his family to enjoy the site of
the Stanford Home and to value, enjoy and appreciate its remarkable history, beauty and
significance upon a hill at the center of the surrounding property.
16. Their proximity and injury in fact gave them standing in the prior actions regarding the
Stanford site. This satisfies the first prong of the test.
17. The preservation of the historic Stanford Home in its present unaltered location is directly
related to the purpose of the Friends of Stanford Home, satisfying the second prong of the test.
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18. Finally, Friends of the Stanford Home do not need the participation of individual
landowners to challenge the Town Planning Boards compliance with SEQRA; further, the
petitioners have alleged and can demonstrate that their injuryirrevocable demolition of the
Stanford Homes basement floorand the degradation and permanent alteration of a meaningful
landmark that they can see from their homes- is real and different from the injury most members
of the public face, as these actions will forever erase any archeologically and historically
important evidence of activities that took place there; may very well lessen their property values
even further; and will forever change the nearly three hundred years of history that has gone into
forming the character and uniqueness of their neighborhood . Save the Pine Bush Inc. v.
Common Council of the City of Albany, 56 A.D.3d 32 (3d Dept. 2008).
19. In addition, because of his proximity to the site, within 300 feet, Petitioners Charles W.
Lester III also has standing. (See McGrath v. Town Bd. Of N. Greenbush, 254 A.D.2d 614, 616,
678 N.Y.S.2d 834, 836 (3d Dept 1998); Sopchak v.Guernsey, 176 A.D.2d 403, 403, 574
N.Y.S.2d 110, 111 (3d Dept 1991).
20. Accordingly, not only is the issue of standing res judicata but is also independently
established in the current proceeding as discussed above.
VENUE
21. Pursuant to CPLR 506(b), venue for an Article 78 proceeding against the Town of
Niskayuna Planning Board is proper in any county in the Fourth Judicial District, including
Schenectady County, where the respondent made the determination complained of or refused to
perform the duty specifically enjoined upon him by law, and because the principal offices of the
Respondent Town of Niskayuna Planning Board are located in Schenectady County and
Schenectady County is located in the Fourth Judicial District.
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PRIOR PROCEEDINGS
22. On May 30, 2007 Petitioners filed a lawsuit, Schenectady County Index No. 2007-775
against the Town of Niskayuna, the Town Board of Niskayuna, Highbridge Development BR
LLC, LJC Properties, LLC and Ingersoll Adult Home to invalidate and vacate approvals of a
negative declaration and special use permit issued March 13, 2007 by Resolution No. 2007-69
of Town of Niskayuna Planning Board (Appendix C, J pgs. 63, 73, 112)
23. The approvals of March 13, 2007 granted Highbridge permission to raze and develop the
Stanford Crossings, a 12.32 acre parcel surrounding the Stanford Home, in order to build a
shopping mall.
24. The Supreme Court of Schenectady County, Hon. Joseph Sise, heard arguments and
decided in favor of Petitioners on June 1, 2007.
25. The Hon. Joseph Sis subsequently issued an Order on September 17, 2007 invalidating
the special use approval the Town issued to Highbridge for construction of a commercial mall
on the Stanford Crossing parcel.
26. Respondents appealed the decision to the Third Department of the Appellate Division of
the State of New York, which reversed the Supreme Court decision and dismissed the petition
on April 11, 2008.
27. The property surrounding the Stanford Home, Stanford Crossings, has since been readied
for development by the removal of all trees from the property and grading and leveling of the
grounds.
28. The present petition focuses on the Stanford Home, a historic property located at the
center of Stanford Crossings.
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29. Highbridge repeatedly assured the Town, its citizen and immediate neighbors to the
development that it would allow the Stanford Home to remain in its current location perched
atop a rise overlooking the surrounding vista and be re-purposed as a restaurant. (Appendix J)
30. The promise that the Stanford Home would remain intact in its location became an
assumption that was incorporated into the SEQRA review of the 2007 site plan.
31. The promise that the Stanford Home would remain intact in its location later became a
key finding enabling the Town to make a negative declaration indicating that the site plan
would not endanger the Stanford Home under SEQRA. (Exhibit C)
32. On June 10, 2010, Highbridge submitted a site plan review application to the Town
Planning Board requesting approval to relocate and partially demolish the Stanford Home, and
sequester the remains to the periphery of the property sandwiched in-between two retail
establishments. (Exhibit H)
33. The Town Planning Board approved the 2010 Highbridge application, relying on the
2007 SEQRA review and negative declaration issued by the Niskayuna Planning Board of 2007.
(Exhibit K)
34. Importantly, the year 2007-era negative declaration the 2010 Town Planning board relied
upon to approve the relocation and partial demolition of the Stanford Home was, as stated
above, issued on the assumption that the Stanford Home would remain unscathed at the center
of the 12.32 acre property.
35. Because the act of relocating and leveling the Stanford Home was never considered in the
2007 SEQRA findings, the 2010 Planning Board illegally failed to consider the harms and
impacts of moving and leveling the Stanford Home, which are the core of Highbrides 2010
proposal.
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36. Petitioners have therefore filed the present legal action to challenge the Town Boards
approval, stop any work Highbridge may begin to move or demolish the Stanford Home and
compel the Town Board to conduct a meaningful and lawful SEQRA review of the proposed
action as mandated by State law and Town Code.
EXHAUSTION OF ALL ADMINISTRATIVE REMEDIES
The Petitioner further alleges that:
37. The present action was triggered by the submission of Highbridge Development BR
LLCs site plan review application on June 10, 2010. (Exhibit A)
38. The application stated it was a request for approval for a minor revision to
Highbridges 2007 site plan.
39. On information and belief, however, in actuality, the minor change proposed in the
plan will would remove the Stanford Home from its original site, irrevocably destroy the Homes
foundation, basement and lower anchoring, and change forever the distinguished nature of the
Home by burying it in the midst of a strip of retail chain stores. (Exhibit H)
40. Following submission of the application the Town Planning Board duly scheduled and
held informational meetings during which the Stanford Home was discussed.
41. Minutes of the meetings had yet to be transcribed at the time of the filing of this petition
and are currently unavailable.
42. The planning board held a regular meeting on July 26, 2010 in which it adopted
Resolution 2010-17, granting Highbridge final site plan approval on its plans. (Exhibit K)
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43. The finality of the approval is reflected in an official letter from the Town Planner to
Highbridge on July 27, 2010, the day on which the approval was filed with the Town Clerk.
(Exhibit G)
44. With no other obstacles in its way, Highbridge can, at any time, begin removal and partial
demolition of the Stanford Home.
45. All administrative remedies have been exhausted and that judicial intervention is
necessary to avoid irreparable harm.
46. There is no mechanism to appeal the decision any further within the Towns
administrative structure.
47. The Planning Board of the Town of Niskayuna has come to a definitive decision that will
imminently cause an actual injury to Petitioners and the Stanford Home.
48. As the action is imminent and the costs of interrupting the project after it started would be
significant, the Petitioner prays for immediate emergency Judicial Intervention granting a
temporary restraining order prohibiting Highbridge from moving the Stanford Home or
demolishing its foundation; annulling the Planning Board Resolution and the approval of the
plan; and enjoining Highbridge from commencing any action directly affecting the Stanford
Home until such time as a new plan is approved following a complete and legally-adequate
SEQRA review.
STATUTE OF LIMITATIONS
49. Article 16 of New York State Town Law, Section 282 imposes a 30-day statute of
limitations for decisions made by a Town Planning Board.
50. The filing of the decision to approve Highbridges application in the office of the Town
Clerk was on July 27, 2010.
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State Historic Preservation Officer for nomination for inclusion in the National Register, or that
is listed on the State Register of Historic Places (a.k.a. the Statewide Inventory of Historical
and Cultural Resources).
56. The Stanford Home is listed on the State Register of Historic Places a.k.a the Statewide
Inventory of Historical and Cultural Resources, and any project impacting it is therefore
presumed to be a Type I action. (Exhibit I)
57. In considering the environmental impact of a Type I action, 6 NYCRR Section 617.4 (A)
(1) mandates that the determination of significance must be made by comparing the impacts
which may be reasonably expected to result from the proposed action with an extensive list of
criteria found in Section 617.7. Among other duties, Section 617.7 requires the lead agency to
review the sponsors Environmental Assessment Form (EAF), thoroughly analyze the identified
relevant areas of environmental concern to determine if the action may have a significant adverse
impact on the environment; and set forth its determination of significance in a written form
containing a reasoned elaboration and providing reference to any supporting documentation.
58. 6 NYCRR 617 (A) (2) empowers agencies to adopt their own lists of additional Type I
actions, which the Town of Niskayuna has done by enacting Section 95-6 (A) (23) of its Town
Code, to specifically include as a Type I Action: Any facility, development or project having an
adverse impact on any historic or prehistoric building, structure or site listed on the National
Register of Historic Places or in the Statewide Inventory of Historical and Cultural Resources.
59. Again, the Stanford Home is listed on the State Register of Historic Places a.k.a the
Statewide Inventory of Historical and Cultural Resources and any project impacting it is
therefore presumed to be a Type I action.
60. Notably, Niskayuna Town Code reiterates the mandatory application of the SEQRA laws
in Section 95-8, which is entitled Compliance Required: No final decision to carry out or
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approve an action shall be made until there has been full compliance with the provisions of these
rules and those of the Commissioner of Environmental Conservation.
BACKGROUND
61. The Stanford Home enjoys a long and distinguished history. It is historically and
architecturally significant for its role in the development of Niskayuna and the Schenectady area
from colonial times to the early twentieth century
62. Situated northwest of the intersection of State Street (NY 5) with Balltown and Consaul
Roads, the current 12.5-acre parcel is significant as the last extant portion of an extensive
country estate first established around the mid-18th century.
63. In 1762, builder/architect Samuel Fuller constructed a substantial country house ("the
Hermitage") on the parcel for John Duncan, a wealthy Schenectady merchant. Duncan occupied
this seasonal residence until his death in 1791. The house was destroyed by fire in 1793 and
never rebuilt. Duncan's heir sold the property to Harmanus Schuyler in 1814. Schuyler served as
supervisor of the town of Niskayuna from 1817-1821; he is believed to have constructed the
extant house on the property before his death in 1822.
64. Sited on a rise set back from the Albany-Schenectady road, the Schuyler house (dubbed
"Locust Grove") is an imposing brick, gambrel roofed, Federal style residence 3 stories high with
above a raised stone basement that served as a kitchen, among other uses.
65. In its scale, massing, design and decoration, this house is a rare and important surviving
example of a major rural estate house of the early 19th century in the Hudson-Mohawk region.
66. The property derives additional significance from its association with the historically
important Stanford family during the nineteenth and early twentieth centuries.
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67. A prominent businessman, Josiah Stanford, purchased the Schuyler property (then 200
acres) in 1859. Although Stanford died soon thereafter in 1862, his son, Charles Stanford, bought
out the other heirs and occupied "Locust Grove" as his principal residence for 20 years (1865-
1885). The brother of railroad magnate and California governor Leland Stanford and founder of
Stanford University, Charles Stanford was himself a successful businessman and state legislator.
68. Soon after acquiring the house, the Stanfords added several Victorian features, including
a raised entrance portico, projecting bay window above the entrance and a series of rounded
dormers. "Locust Grove Farm" became a showplace also known as Stanford Heights, with
extensive barns, outbuildings and a racetrack to accommodate Charles Stanford's thoroughbred
trotting horses.
69. The property remained in Stanford family hands until the death of Welton Stanford (son
of Charles Stanford) in1923, when his widow sold the house and 12.5 acres to the trustees of the
Ingersoll Memorial. Established with a bequest from the estate of George T. Ingersoll of
Schenectady, the Ingersoll Memorial for Aged Men occupied the brick residence from 1924
through 2005.
70. The Ingersoll Memorial Building and its immediate surroundings retain considerable
integrity to their long period of significance. The brick structure reflects Federal, Late Victorian
and Georgian/Colonial Revival architectural influences, and remains an important historic and
architectural landmark associated with the development of Niskayuna from colonial times to the
early twentieth century.
71. Trustees for the Ingersoll Memorial for Aged Men sold the property in 2005 to
Highbridge Development BR LLC, which led to the commencement of legal actions described in
lines 22-36 of this Petition.
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to the very periphery of the 12 acre site; and demolishing and leveling the ancient kitchen,
basement floor and original decking and architecture at the base of the building.
79. Apparently aware that its proposed lowering of the Stanford Home was a major projectand likely at the request of Town officials concerned about public protest, Highbridge submitted
an application to the Town of Niskayuna for a Site Plan Review on June 10, 2010, nonetheless
describing its proposal as Minor Site-Plan Modifications. (Exhibit A)
80. The description of the project as a minor modification is exactly the same term used by
the Town Planner in her letter to Highbridge on April 15, 2010 when she stated that review was
unnecessary. (Exhibit F)
81. It is not clear if Highbridge knew it would receive approval for its project based on the
Town Planners letter of April 15, 2010 and was merely going through the motions of complying
with SEQRA and Town Codes to appease Town officials and the public.
82. However, it is instructive to note that, upon information and belief and an inspection of
public records, Highbridge Development did not include an Environmental Assessment Formwith its application as is required by the application instructions. (Exhibit AComplete
Application as found in Town Records)
83. Furthermore, upon information and belief and an inspection of public records,
Highbridge did not require, receive or discuss a waiver of the required Environmental
Assessment Form with anyone in the Town Planning Office. (Exhibit AComplete Application
as found in Town Records)
84. It is not clear if the Town Planning Office was merely going through the motions of
complying with SEQRA laws and Town Codes when it received Highbridges application.
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85. However, it is instructive to note that said application was nonetheless stamped
received by the Niskayuna Planning Office on June 10, 2010, despite the fact that it was
obviously missing the required Environmental Assessment Form. (Exhibit A, page 2)
86. Furthermore, upon information and belief and an inspection of the public record, no
request was made to Highbridge for submission of an Environmental Assessment Form, even
though it is a stated requirement of the application form; an implied requirement for adequate
review of the application per Chapter 95, Environmental Quality Review of the Code of the
Town of Niskayuna; and is required under 6 NYCRR 617.7 for presumed Type I actions
activities of the sort proposed in Highbridges application. (Exhibit A, Page 1)
87. On June 28, 2010, the Niskayuna Town Attorney, evidently responding to this deficiency,
wrote a memo to the Town Supervisor and Town Planner stating his opinion that the Planning
Board should nonetheless treat the application as an amended site plan and, proceed
accordingly. (Exhibit B)
88. The Town Attorneys memo demonstrates that if the application was deficient on its face
when submitted to the Town Planning Office, its deficiency was also noticed by the Town
Supervisor, Town Planner, Town Attorney, and Planning Board, none of whom sought to correct
the error.
89. By writing his memo, the Town Attorney created a very thin but real paper trail
indicating that the project had received some sort of scrutiny by Town authorities. However, it is
not clear what the Town Attorney meant when he said in his memo that the Town officials
should proceed accordingly.
90. What it is clear is that proceeding accordingly did not include SEQRA review of the
application per State law and Town Code, as none was done by the Planning Board.
91. This is an error in violation of State SEQRA law and Town Code, as follows:
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92. 6 NYCRR Section 617.4 lists actions that are presumptively Type I actions. Among
these actions are those included under 617.4 (B) (9) are those: occurring wholly or partially
within, or substantially contiguous to, any historic building, structure, facility, sitethat is
listed on the State Register of Historic Places (a.k.a. the Statewide Inventory of Historical and
Cultural Resources).
93. The Stanford Home is listed on the State Register of Historic Places (a.k.a the Statewide
Inventory of Historical and Cultural Resources), and any project impacting it is therefore
presumed to be a Type I action. (Exhibit I)
94. Similarly, 6 NYCRR 617 (A)(2) empowers bodies to adopt their own lists of additional
Type I actions, which the Town of Niskayuna has done by enacting Section 95-6 (A) (23) of its
Town Code, to include as a Type I Action: Any facility, development or project having an
adverse impact on any historic or prehistoric building, structure or site listed on the National
Register of Historic Places or in the Statewide Inventory of Historical and Cultural Resources.
95. The Stanford Home is listed on the Statewide Inventory and its relocation and partial
demolition is therefore, as a matter of law, presumptively a Type I action under Niskayuna Town
Code 95-6 (A) (23). (Exhibit I)
96. Under Niskayuna Town Code 95-6 (B), an action also is presumptively a Type I action
warranting a SEQRA review if it has, or if it involves Any funding, licensing or planning
activities in respect of any of the types of construction listed in Subsection A above.
97. Since the 2010 site plan revision submitted by Highbridge is by definition a planning
activity, it is therefore, as a matter of law, presumptively a Type I action under Niskayuna
Town Code 95-6 (B) as well.
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98. The Town Planning board has a clear and nondiscretionary mandated duty under 6
NYCRR 617 and Town Code 95-6 (A) (B) to review Type I actions.
99. The Town Attorney, Planner, and Planning Board therefore failed in their lawful duty torequire Highbridge to submit an Environmental Assessment Form required by 6 NYCRR 617.7
for actions presumed to be Type I.
100. The Town Attorney, Planner, and Planning Board also failed in their lawful duty to
require Highbridge to submit an Environmental Assessment Form required by Section 95 of the
Town Code.
101. Further, by waiving a new review of the application after internal discussions alone, the
Towns actions are in direct conflict with Niskayuna Town Code Section 95-8, which is entitled
Compliance Required: No final decision to carry out or approve an action shall be made until
there has been full compliance with the provisions of these rules and those of the Commissioner
of Environmental Conservation.
102. In addition, Niskayuna Town 220-43 (C) states that: The Planning Board shall act in
accordance with the State Environmental Quality Review regulations and local law for the
purpose of environmental review of the application.
103. The Planning Board nonetheless approved Highbridges proposal on July 26, 2010 in
Resolution 2010-17. (Exhibit K)
104. By choosing to accept and approve the deficient application and failing to make any
effort to request the appropriate documents from the applicant, the Town of Niskayuna and its
Planning Board ignored its own rules and procedures, ignored applicable Town Code and
thereby ignored its mandate to uphold New York State SEQRA laws.
105. In fact, the Resolution approving Highbridgess proposal mainly cites documents that
refer to a project Highbridge undertook in 2007 that is only related to the current proposal insofar
as it assumes that the Stanford Home will remain intact in its current central location (Exhibit J,
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testimony of 2007 Town Board, Exhibit C 2007 SEQRA negative declaration, Exhibit H
schematic of site plan as envisioned in the 2007 special use permit, with Stanford Home at
Center of Property.)
106. By granting approval of the site plan revision without conducting even a cursory SEQRA
review of its own, the Town Planning Board failed to perform any of the duties enjoined upon it
by law under SEQRA as implemented in the Niskayuna Town Code and Town procedures.
107. As a result of the above, Niskayuna Resolution 2010-17 and the Niskayuna Town
Planning Boards approval of Highbridges proposal to move the Stanford Home violated
SEQRA, mischaracterized the project as a minor rather than a Type I action, is arbitrary and
capricious, unsubstantiated by the evidence, incomplete, and should be vacated and annulled.
Highbridge should also be enjoined from relocating, leveling, or partially demolishing the
Stanford Home.
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AS AND FOR A SECOND CAUSE OF ACTION AGAINST THE TOWN OF
NISKAYUNA PLANNING BOARD: The Planning Board Exceeded Its Jurisdiction and
Ignored State Law and Town Code
108. Petitioners/Plaintiffs repeat and reallege paragraphs 1 through 107 as if fully set forth.
109. In adopting SEQR, it was the New York State Legislature's intention that all agencies
conduct their affairs with an awareness that they are stewards of the air, water, land, and living
resources, and that they have an obligation to protect the environment for the use and enjoyment
of this and all future generations. 6 NYCRR 617.1(b)
110. The basic purpose of SEQR is to incorporate the consideration of environmental factors
into the existing planning, review and decision-making processes of state, regional and local
government agencies at the earliest possible time. To accomplish this goal, SEQR requires that
all agencies determine whether the actions they directly undertake, fund or approve may have a
significant impact on the environment, and, if it is determined that the action may have a
significant adverse impact, prepare or request an environmental impact statement. 6 NYCRR
617.1 (c)
111. Under SEQRA, no agency involved in an action may undertake, fund or approve the
action until it has complied with the provisions of SEQR. A project sponsor may not commence
any physical alteration related to an action until the provisions of SEQR have been complied
with. 6 NYCCR 617.3 (a)
112. Furthermore, under SEQRA, an application for agency funding or approval of a Type I
action will not be complete until: (1) a negative declaration has been issued; or (2) until a draft
EIS has been accepted by the lead agency as satisfactory with respect to scope, content and
adequacy. 6 NYCRR 617.3 (c)
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113. On June 10, 2010 Highbridge submitted an application to the Town of Niskayuna for a
Site Plan Review describing its proposal as Minor Site-Plan Modifications. (Exhibit A)
114. The modification is described in various documents merely as a lowering of the sitegrade. (Exhibits E, F)
115. However, upon information and belief, the actual effect of lowering the grade is to
remove the Stanford Home from its commanding location upon a high point at the center of the
surrounding 12.32 acre property where it overlooks the surrounding vista; relocating the bulk of
the structure to the very periphery of the 12 acre site; and demolishing and leveling the ancient
kitchen, basement and original decking and architecture at the base of the building. (Exhibit H)
116. 6 NYCRR 617 (A)(2) empowers bodies to adopt their own lists of additional Type I
actions, which the Town of Niskayuna has done by enacting Section 95-6 (A) (23) of its Town
Code, to include as a TYPE I Action: Any facility, development or project having an adverse
impact on any historic or prehistoric building, structure or site listed on the National Register of
Historic Places or in the Statewide Inventory of Historical and Cultural Resources.
117. The Stanford Home is listed on the Statewide Inventory and its relocation and partial
demolition is therefore, as a matter of law, presumptively a Type I action under Niskayuna Town
Code 95-6 (A) (23). (Exhibit I)
118. Under Niskayuna Town Code 95-6 (B), an action also is presumptively a Type I action
warranting a SEQRA review if it has, or if it involves Any funding, licensing or planning
activities in respect of any of the types of construction listed in Subsection A above.
119. Since the 2010 site plan revision submitted by Highbridge is by definition a planning
activity, it is therefore, as a matter of law, presumptively a Type I action under Niskayuna
Town Code 95-6 (B) as well.
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120. The Town Board has a clear and nondiscretionary mandated duty under 6 NYCRR 617
and Town Code 95-6 (A) (B) to review Type I actions.
121. However, rather than treating the proposed modification as a presumed Type I action, the
Planning Board instead mischaracterized the action as a mere modification to the original 2007
site plan for the property, which underwent SEQRA review in 2007.
122. By mischaracterizing the action as a mere modification, the Planning Board avoided the
fact that the action of moving and partially demolishing the Stanford Home was a completely
new undertaking that was never considered in the 2007 SEQRA review.
123. In fact, the 2007 SEQRA review adopted by the 2010 Planning Board was done under the
assumption that the Stanford Home would remain intact and in its present location, as
documented in the plans schematics, the Towns Negative Declaration document, and in
testimony from Town Council members, and the developers advertisements, attorneys and
agents. (Exhibits H, C, J)
124. The 2007 SEQRA review in fact did not in any way evaluate, consider, take a hard look
at, or address the impact of relocating or partially demolishing the Stanford Home, and is
uninformative in assessing the current site plan modification. (Exhibit C)
125. Thus, not only did the Planning Board fail to undertake a mandated de novo review of the
application using SEQRA procedures, but it also unlawfully delegated its obligation to do so by
giving the task to its predecessors on the Planning Board in 2007, postulating that this entirely
new Type I action proposed in 2010 was somehow covered by the 2007 SEQRA review.
126. Having arbitrarily waived it duties under State law, the Town Board held a meeting on
July 26, 2010 where it accepted the 2007 Planning Boards SEQRA plan as its own and adopted
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Resolution No. 2010-17, in which it approved the site plan modification without any independent
consideration of SEQRA or the deficiencies of its own actions. (Exhibit K)
127. According to the Court of Appeals of New York State, The mandate that agenciesimplement SEQRA's procedural mechanisms to the "fullest extent possible" reflects the
Legislature's view that the substance of SEQRA cannot be achieved without its procedure, and
that departures from SEQRA's procedural mechanisms thwart the purposes of the statute.
Edgar King, Individually & as Supervisor of Northumberland, et al. v. Saratoga County Board of
Supervisors, 89 N.Y.2d 341, 675 N.E.2d 1185, 653 N.Y.S.2d 233 (1996).
128. An arbitrary decision by the Planning Board to ignore SEQRA is a complete dereliction
of duty and does not absolve it from its obligation to observe and implement SEQRA.
129. Furthermore, the Planning Board does not have discretionary authority to disregard
mandated State law and Town Code or replace the judgment or jurisdiction of the New York
State Legislature and Town Council with its own.
130. By sidestepping its obligations under SEQRA and the Niskayuna Town Code, thePlanning Board exceeded its jurisdiction and authority; disregarded, avoided, ignored and
thwarted the effect, spirit and intent of the New York State Legislature in its enactment of the
SEQRA laws; and placed itself above the law by re-configuring lawful SEQRA procedures as
proscribed by the State Legislature.
131. As a result of the above, Niskayuna Resolution 2010-17 and the Niskayuna Town
Planning Boards approval of Highbridges proposal to move the Stanford Home violatedSEQRA, is arbitrary and capricious, unsubstantiated by the evidence, incomplete, in excess of
jurisdiction and should be vacated and annulled. Highbridge should also be enjoined from
relocating, leveling, or partially demolishing the Stanford Home.
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AS AND FOR A THIRD CAUSE OF ACTION AGAINST THE TOWN OF NISKAYUNA
PLANNING BOARD: The Planning Boards decision to approve Highbridges application
was arbitrary and capricious.
132. Petitioners/Plaintiffs repeat and reallege paragraphs 1 through 131 as if fully set forth.
133. Highbridge Development BR LLC (hereinafter Highbridge), submitted an application
to the Town of Niskayuna for a Site Plan Review on June 10, 2010, describing its proposal as
Minor Site-Plan Modifications. (Exhibit A)
134. Niskayuna Town Code 95-11(A), allows the Town to require applicants to include as part
of their applications an environmental assessment form describing and analyzing the
environmental impacts of the proposed action.
135. The Town has incorporated this requirement on the front page of the Town of Niskayuna
Site Plan Review application, which requires applicants to include various documents, including:
Six (6) copies of the short or long Environmental Assessment Form (EAF), as required by
6NYCRR Part 617, State Environmental Quality Review, and Chapter 95, Environmental
Quality Review of the Code of the Town of Niskayuna. (Exhibit A, Page 1)
136. Upon information and belief and an inspection of public records, Highbridge
Development did not include an Environmental Assessment Form with its application as required
by the application instructions. (Exhibit Acomplete application as it appears in Town records)
137. Upon information and belief and an inspection of public records, Highbridge did not
require, receive or discuss a waiver of the required Environmental Assessment Form with anyone
in the Town Planning Office.
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138. Said application was nonetheless stamped received by the Niskayuna Planning Office
on June 10, 2010, despite the fact that it was obviously missing the required Environmental
Assessment Form. (Exhibit A, page 2)
139. Upon information and belief, no request was made to Highbridge for submission of an
Environmental Assessment Form, even though it is a stated requirement of the application form
as well as an implied requirement for adequate review of the application per Chapter 95,
Environmental Quality Review of the Code of the Town of Niskayuna.
140. On June 28, 2010, the Niskayuna Town Attorney, evidently responding to this deficiency,
wrote a memo to the Town Supervisor and Town Planner stating his opinion that the Planning
Board should nonetheless treat the application as an amended site plan and, proceed
accordingly. (Exhibit B)
141. In the same June 28, 2010 memo, the Town Attorney indicated that he had reviewed the
2010 site plan revision proposal along with a 2007 special use permit, minutes of relevant
meetings in 2007, and a 2007 negative declaration concerning the original 2007 site plan filed by
Highbridge to develop the property surrounding the Stanford Home. (Exhibit B)
142. In its final resolution approving Highbridges 2010 site plan modification, the Planning
Board indicated that it too relied on the adequacy of the 2007 SEQRA review to excuse itself
from conducting a new SEQRA review of the proposal to move the Stanford Home. (Exhibit K)
143. However, in the 2007 site plan, Highbridge indicated that it would not relocate the
Stanford Home thereby removing that action from consideration in the SEQRA review of the2007 construction project, a fact reiterated by Town officials and Highbridges advertisements,
attorneys and agents and evident in project renderings. (Exhibits J, H)
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144. Furthermore, in a negative declaration following the 2007 SEQRA review of the original
2007 site plan, the 2007 Planning Board specifically stated that constructing a retail mall around
the Stanford Home would not negatively impact the building because it is, is being
maintained in its current location and is being re-used (Exhibit C, page 11)
145. Thus the 2007 Negative Declaration, 2007 site plan and 2007 SEQRA considerations that
the 2010 Planning Board and Town Attorney relied upon in all their deliberations did not in any
way evaluate, consider, take a hard look at, or assess the impact of relocating or partially
demolishing the Stanford Home. To the contrary, the 2007 documents assumed the Stanford
Home would remain intact and in place.
146. Despite the fact that the 2007 SEQRA review did not consider the effects of moving or
partially demolishing the Stanford Home and in no way addressed the notion of lowering of the
Stanford Home from its elevated position at the center of the property, the Planning Board
nonetheless disingenuously used the 2007 SEQRA review in lieu of doing its own SEQRA
review of the relocation and partial demolition of the Stanford Home as proposed by 2010 site
plan application.
147. Thus, not only did the Planning Board fail to undertake a mandated de novo review of the
application using SEQRA procedures and fail to procure or review an Environmental
Assessment Form that is a required part of a site plan review application, but it also unlawfully
delegated its obligation to perform a SEQRA review to its predecessors on the Planning Board in
2007, postulating that Highbridges new plans for the Stanford home are somehow covered by
the 2007 SEQRA review.
148. Having erroneously and illogically concluded that the 2007 SEQRA review discharged
the Planning Boards duty to conduct a new SEQR review, and having nothing in the way of an
environmental assessment regarding the effect that relocation and demolition could have on the
Historic Stanford home, the Planning Board arbitrarily and capriciously went forward with
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hearings regarding the site plan, and on July 26, 2010 adopted Resolution No. 2010-17,
approving the new site plan. (Exhibit K)
149. As a result of the above, Niskayuna Resolution 2010-17 and the Niskayuna TownPlanning Boards approval of Highbridges proposal to move the Stanford Home violated
SEQRA, is arbitrary and capricious, unsubstantiated by the evidence, incomplete, and should be
vacated and annulled. Highbridge should also be enjoined from relocating, leveling, or partially
demolishing the Stanford Home.
AS AND FOR A FOURTH CAUSE OF ACTION AGAINST THE TOWN OF
NISKAYUNA PLANNING BOARD: The record does not support the Planning Boards
decision to approve the 2010 site plan revision.
150. Petitioners/Plaintiffs repeat and reallege paragraphs 1 through 149 as if fully set forth.
151. On June 10, 2010 Highbridge submitted an application to the Town of Niskayuna for a
Site Plan Review describing its proposal as Minor Site-Plan Modifications. (Exhibit A)
152. The modification is described in various documents merely as a lowering of the sitegrade. (Exhibits E, F)
153. However, upon information and belief the actual effect of lowering the grade is to
remove the historic Stanford Home from its commanding location upon a high point at the center
of the surrounding 12.32 acre property where it overlooks the surrounding vista; relocating the
bulk of the structure to the very periphery of the 12 acre site; and demolishing and leveling the
ancient kitchen, basement and original decking and architecture at the base of the building.(Exhibit H)
154. 6 NYCRR 617 (A)(2) empowers bodies to adopt their own lists of additional Type I
actions, which the Town of Niskayuna has done by enacting Section 95-6 (A) (23) of its Town
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Code, to include as a TYPE I Action: Any facility, development or project having an adverse
impact on any historic or prehistoric building, structure or site listed on the National Register of
Historic Places or in the Statewide Inventory of Historical and Cultural Resources.
155. The Stanford Home is listed on the Statewide Inventory and its relocation and partial
demolition is therefore, as a matter of law, presumptively a Type I action under Niskayuna Town
Code 95-6 (A) (23). (Exhibit I)
156. Under Niskayuna Town Code 95-6 (B), an action also is presumptively a Type I action
warranting a SEQRA review if it has, or if it involves Any funding, licensing or planning
activities in respect of any of the types of construction listed in Subsection A above.
157. Since the 2010 site plan revision submitted by Highbridge is by definition a planning
activity, it is therefore, as a matter of law, presumptively a Type I action under Niskayuna
Town Code 95-6 (B) as well.
158. The Town Board has a clear and nondiscretionary mandated duty under 6 NYCRR 617
and Town Code 95-6 (A) (B) to review Type I actions.
159. In its July 26, 2010 Resolution 2010-17, the Town of Niskayuna Planning Board Town
approved Highbridges site plan review application. (Exhibit K)
160. As a partial basis for its approval of Resolution No. 2010-17, the Planning Board
acknowledged receipt of a new site plan from Highbridges engineers dated April 20, 2010, lastrevised July 1, 2010. (Exhibit K)
161. As a partial basis for its approval of Resolution No. 2010-17, the Planning Board also
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states that the Town Designated Engineer reviewed the plan and stated that it would be
appropriate to allow the applicant to proceed. (Exhibit K)
162. No further mention is made of any other current or updated evidence, documents,information, or testimony in support of the new site plan.
163. There is furthermore no indication in the records of the Town of Niskayuna Planning
Department or through discussions with Planning Board staff that Highbridge ever filed or was
asked to file an Environmental Assessment Form even though it is a stated requirement on the
front page of the Town of Niskayunas site plan review application and required by 6 NYCRR
617.7 for projects that are presumed to be Type I actions. (Exhibit A, page 1)
164. The sole references to environmental or SEQRA review of the proposed project in
Resolution No. 2010-17 relate to a special use permit issued to Highbridge on March 14, 2007,
more than three years before the present project was contemplated. (Exhibit K)
165. In that special use permit, the Niskayuna Planning Board approved a site plan for
construction of a retail shopping mall on the 12.32 acres that surround the Stanford Home.
(Exhibit H)
166. The historic Stanford Home stands on a high point at center of that property. Among
other historic distinctions, it is the former homestead of the Stanford family, members of which
include commercial pioneers, a newspaper publisher, a U.S. Senator, and the founder of
Stanford University (Exhibit L). The location of the Home is historically and archeologically
significant because of the highly unique and ancient structures in the basement of that site
(Exhibit M), as well as its commanding position overlooking a major intersection of equal
important historic significance as a pre-revolutionary war trading route.
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174. Under SEQRA, an application for agency funding or approval of a Type I action will not
be complete until: (1) a negative declaration has been issued; or (2) until a draft EIS has been
accepted by the lead agency as satisfactory with respect to scope, content and adequacy. 6
NYCRR 617.3 (c)
175. By failing to rebut the presumption that Highbridges plan to move and partially
demolish the Stanford Home is a Type I action, or requiring the applicant to generate an
Environmental Impact Statement assessing the action, the Town Board failed to produce a record
or substantiate or generate any evidence or weigh criteria supporting its determination approving
the project.
176. In considering the environmental impact of a Type I action, 6 NYCRR Section 617.4 (A)
(1) mandates that the determination of the significance of an action must be made by comparing
the impacts which may be reasonably expected to result from the proposed action with an
extensive list of criteria found in Section 617.7.
177. Among other duties, Section 617.7 requires the lead agency to review the sponsors
Environmental Assessment Form (EAF), thoroughly analyze the identified relevant areas of
environmental concern to determine if the action may have a significant adverse impact on the
environment; and set forth its determination of significance in a written form containing a
reasoned elaboration and providing reference to any supporting documentation.
178. Lacking evidence in the record of an EAF; an analysis of the effect of the Highbridge
proposal on the character of the Stanford Home; or a determination of significance in a written
form containing a reasoned elaboration and providing reference to any supporting
documentation, the Planning Boards decision is fatally defective and flawed.
179. As a result of the above, Niskayuna Resolution 2010-17 and the Niskayuna Town
Planning Boards approval of Highbridges proposal to move the Stanford Home violated
SEQRA, is arbitrary and capricious, unsubstantiated by the evidence, incomplete, and should be
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Exhibit M Affidavit of John Wilcott, historian and archaeologist, about the significance of
the Stanford Home in its current location
180. A prior application has not been made for the relief requested herein.
WHEREFORE, Plaintiffs request that the court enter and order and judgment:
1) Vacating and invalidating the Niskayuna Planning Board and Zoning Commission
Resolution 2010-17 and the Boards approval of the Highbridge application on July 26, 2010, as
arbitrary and capricious, incomplete, erroneous and deficient, in excess of its jurisdiction and a
results of the Boards failure to perform a duty enjoined upon it by law;
2) Granting a Preliminary Injunction against Highbridge preventing it from its immediate
plans to move the Stanford Home and demolish its foundation
3) Enjoining the Highbridgefrom commencing any action directly affecting the location
or integrity of the Stanford Home until such time as a new plan is approved following a complete
and legally-adequate SEQRA review;
4) Directing the Town of Niskayuna Planning Board to observe SEQRA laws and its own
procedures under SEQRA, and
5) For such other a further relief as to this court seems just and proper.
Dated: Schenectady N.Y.
August 25, 2010
___________________
Alex Brownstein, Esq.
Attorney for the Petitioners
1082 Regent Street
Niskayuna, N.Y. 12309
(518) 387-9197