friends of stanford petition

8/6/2019 Friends of Stanford Petition

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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


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.











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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.


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.


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.


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



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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.










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.


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

friends of stanford petition

Documents