STATE OF NEW YORKCOLTNTY OF MADISON SUPREME COURT

Present: Hon. Donald F. Cerio, Jr.Acting Supreme Court Justice

In the Matter of the Application for a Judgment Pursuant toArticle 78 of the Civil Practice Law and Rules and forDeclaratory Relief Pursuant to CPLR Section 3001 of:

LAWRENCE J. FRIGAULT, CAROL A. FRIGAULT, PAULKIDDER, DEBORAH A. KIDDER, REX A. SEAMON,DAWN M. SEAMON, JOHN C. WOUDENBERG, PAULAM. WOUDENBERG, JOEL G. SAWICKI, LORI E. SAWICKI,FREDERICK C. VERTUCCI, JOY L. VERTUCCI, TED S.FOX, MICHAEL J. REID, LOUIS M. SALAUN, LUCY G.SALAI.IN, GEORG.ANN F. GIGLIOTTI, KELLY A. AUGER,DAVID E. YODER, LESLIE P. WEAVER, DANIEL E.MEZTK, SHERRY M.MEZIK, WILLIAM J. ZALESKI,PATRICIA L. ZALESKI, FLORENCE V. TREEN, HOWARDC. MOSS, PATRICIA A. DUCIAUME, DOROTHY S.DUCIAUME, E. ALAN SILVER, SUSAN J. HUXTABLE.KATHLEEN G. CARNEGIE, DANIEL R. SULLIVAN,TERESA W. SULLIVAN and BARBARA H. MEZIK.

Petitioners.

v.

TOWN OF RICHFIELD PLANNING BOARD, MONTICELLOWIND LLC, NORTHEAST WIND PROJECTS, LLC,zuDGELINE EASTERN ENERGY, LLC, ALICE C.ARMSTRONG, KEITH C. ARMSTRONG, MARNA M.ARMSTRONG, LOIS A: AUGER, WENDY S. MULLIGAN,WAYNE K. ARMSTRONG, KAREN A. RUDD, HAROLD T.FERGUSON, FAY R. FERGUSON, HAROLD F. FERGUSON,JR,, HANWINSEL FARMS, INC., HUXTABLE FARMPROPERTIES, LL, DEBRA J. KOSEK, and WILLIAM R.KOSEK, JR.,

Respondents.

DECISION AND ORDER

Index No. 2011-2012

This matter comes on before the Court upon Petitioners' Notice of Petition and Verified Petition

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dated December 16, 2011, seeking an order of this Court: (1) Annulling and vacating alldeterminations of the Town of Richfield Planning Board made at the special meeting ofNovember 22,201l, as contrary to the letter and spirit of the Open Meetings Law; (2) Findingthe Planning Board in violation of the Freedom of Information Law; (3) Annulling and vacatingthe Planning Board's negative declaration as contrary to the letter and spirit of SEQRA, anddeclaring that an EIS must be prepared for the proposed project; (4) Annulling and vacating thespecial permit granted to Monticello Wind LLC as contrary to the letter and spirit of the TownLaw, the General Municipal Law, the Agriculture and Markets Law, and the Town of RichfieldLand Use and Building Management Ordinance; (5) Annulling and vacating the special permitgranted to Monticello Wind LLC for failure of the Planning Board to properly apply the LandUse Ordinance and failure to make written findings concerning how the proposed project meetsthe eight specific standards in the Land Use Ordinance; (6) Declaring and issuing a permanentinjunction that the use of land for industrial wind turbines is not an atthorized use of landpursuant to the Land Use Ordinance, and; (7) Granting such other and further relief includingattorney's fees, ordering compliance training pursuant to the Open Meetings Law, as well as

costs and disbursements.

Respondent Town of Richfield Planning Board submitted an Answer dated February 27,2012,and the Affrdavits of David S. Merzig, Esq., Monica Harris, Cynthia Andela and Donald Urtz,along with a Memorandum of Law on Behalf of the Town of Richfield Planning Board datedMarch 22,2012.

Respondents Alice C. Armstrong; Keith C. Armstrong; Marna M. Armstrong; Lois A. Auger;Wendy S. Mulligan; Wayne K. Armstrong; Karen A. Rudd; Harold T. Ferguson; Fay R.Ferguson; Hanwinsel Farms, Inc.; Huxtable Farm Properties, LLC; Debra J. Kosek, and; WilliamR. Kosek, Jr., submitted a Verified Answer dated February 28,2}lz,along with theSupplemental Affirmation of Meave M. Tooher, Esq., and the Affidavits of Debra J. Kosek andHarold T. Ferguson.

Respondents Monticello Hills Wind, LLC; Northeast Wind Projects, LLC, and; RidgelineEastern Energy, LLC, submitted an Answer along with the Affidavits of Owen Grant and J.Michael Naughton, dated February 27,2012, as well as a Memorandum of Law on Behalf ofRespondent Monticello Hills Wind LLC, dated February 28,2012. Subsequently submitted werethe Reply Affidavit of Douglas H. Ward, the Affrdavit of Owen Grant and a Reply Memorandumof Law on Behalf of Respondent Monticello Hills Wind LLC.

The parties appeared in Madison County Supreme Court on March 30,2012, and were heard insupport of their respective positions.

Post-argument submissions were made by Respondent Town of Richfield Planning Board undercover dated April 5,2012, consisting of the Affidavit of Patrick Heaton and the Affidavit ofKaren Sullivan.

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Petitioner, by and through counsel, submitted a response to Respondent Planning Board's post-

argument submissions dated April 16, 2012.

The following reflects the Decision and Order of this Court:

Brief History

The Town of Richfield is located in Northwestem Otsego County and is generally rural in nature.

The proposal which is at the center of this matter consists of the prospective construction of six3.075 megawatt wind turbines along with access/service roads, a substation, switch yard and

other associated facilities. The turbines themselves would be approximately 492 feet tall and364feet wide. Within the area of the proposed project presently lie the Marcy-South Transmission

line, NYSEG transmission line, the El Paso Natural Gas pipeline and US Route 20, CountyRoute 25 and at least two local roadways.

The initial application for a special use permit on behalf of Respondent Monticello Hills Wind,LLC (Monticello) to Respondent Town of Richfield Planning Board (Board) was made on orabout March 14,2011. On June 13,2011, the Board designated itself the "lead agency" pursuant

to the New York State Environmental Quality Review Act (SEQRA) and conducted a publichearing on the application on September l2,20ll . On October 24,201l, Petitioner LarryFrigault requested of the Board all records pertaining to the turbine project. He was advised byletter dated October 27 ,2011, that such records would be forthcoming within forty-five days. Atthe November 14, 2011, Board meeting relevant issues with respect to the application wereadjourned to November 22,2011. Petitioner Frigault made application for disclosure of variousdocuments pertaining to the application as discussed at the November 14,201l, hearing and such

request was denied. Notice was thereafter provided that the next Board meeting would be held onNovember 22,2011, at7:00 PM at the Town of Richfield Town Hall, 18 James Street, RichfieldSprings, New York. On November 22,2011, the Town Hall was filled beyond capacity and a

decision was made to continue the meeting at Trinity Church which was located on Route 20 anda few blocks from the Town Hall. The meeting continued at Trinity Chwch and the Board issued

a negative SEQRA declaration and approved the special use permit necessary for theconstruction of the turbine project. The instant petition thereafter was filed seeking to annul theactions of the Board.

Legal Analysis

Upon the verified petition submitted herein this Court will address the issues raised seriatim as

set forth therein.

l. Annulling and vacating all determinations of the Town of RichfieldPlanning Board made at the special meeting of November 22,2011,

as contrary to the letter and spirit of the Open Meetings Law

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a. Audibility

Public Officers Law Article 6 is entitled "Open Meetings Law" (hereinafter OML). Thelegislative declaration set forth at $100 thereofstates that,

It is essential to the maintenance of a democratic society that the public businessbe performed in an open and public manner and that the citizens of this state befully aware of and able to observe the performance of public offrcials and attendand listen to the deliberations and decisions that go into the making of publicpolicy. The people must be able to remain informed if they are to retain controlover those who are their public servants. It is the only climate under which thecommonwealth will prosper and enable the governmental process to operate for thebenefit of those who created it.

Thus, every meeting of a public body wherein "public business" is discussed must be done so inan "open and public manner." Here, there can be no serious question raised that the November22,2011, Board meeting was the "official convening of a public body for the purpose ofconducting public business," that the Board is a "public body" and that the Board is subject to themandates of the oML. (oML $102).

With respect to the November 22,2011, meeting, which is that particular meeting upon whichpetitioners have focused, petitioners assert that the Board failed to provide a facility that wouldaccommodate those members of the public who wished to attend; that the Board's directive thatpersons then present leave so as to comply with accommodation limitations was improper; thatthe ad hoc relocation to the Trinity Church was improper; that the Board failed to giveiimelynotice that the meeting would be held at the Trinity Church, and; that the Board's discussionswere undertaken in such a way as to frustrate the attendees' ability to discern what was being saidand, therefore, was in violation of the OML.

The affidavits as submitted by petitioners allege that the respondent Board members at theNovember 22,2011, meeting conducted such in "hushed tones" so as to prevent the public fromhearing what was transpiring. Respondents, on the other hand, assert that the discussion wasconducted in a conversational tone, the board members faced the public and no efforts weremade to impede the public's opportunity to hear what was being said.

The very intent of the OML's legislative declaration to insure that the "citizens of this state befully aware of and able to observe the performance of public officials and attend and listen to thedeliberations and decisions" would be frustrated by any effort on the part of a public ofiicial orofficials to conduct business in such away that the "citizens" would be unable to',listen to thedeliberations and decisions" undertaken on their behalf. (See Goetschir+s v. Board of Educationsf the Greenburgh Eleven Union Free School District,2Sl AD2d 4l6F OOnO0l; OML$100). "[T]he Open Meetings Law should be implemented in a manner that sives reasonahtes Lu,l.

'-|. I lhe upen Meetmgs Law should be implemented in a manner that gives reasonableeffect to its intent" (Comm. on open Govt. oML-Ao-2648atlgg6)). To do otherwise would

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serve to both undermine the legislative intent and, more importantly, effectively usurp thepublic's right to know what actions are being discussed, contemplated or enacted by publicofficials (Comm. On Open Govt. OML-AO-2865 [1998]). Such can not be countenanced in ademocratic society.

This court, by memorandum dated May 23,2012, advised respective counsel that, upon review ofthe various submissions, a "triable issue of fact" had been raised (CPLR $7804(h) as it related towhether the proceedings at issue were sufficiently audible to permit attendees to "observe theperformance of public officials and attend and listen to the deliberations and decisions" thenbeing conducted. This court fuither informed counsel that a trial and resolution of this issue wasnecessary prior to the completion of a written decision on the pending pleadings. Thereafter,upon consent of the parties, this court informed counsel by memorandum dated June 25, 2012;that a review of two DVD's taken the night of the November 22,201I meeting, as submitted byAttorney Z,amelis and as previously reviewed by opposing counsel, would be undertaken toaddress this "triable issue of fact" in lieu of a trial.r These DVD's, having now been reviewed bythis court, are found to be of sufficient quality, clarity and audibility, and, in conjunction with theprior submissions of the parties, permit a finding that there was no interference with theattendees' ability to "observe the performarrce" of the board members at the November 22,2011,meeting. This court also finds that the attendees' right to "attend and listen to the deliberationsand decisions" of the board was not impeded to any significant degree. This court makes a

specific finding that the discussions of the Board on November 22,2011, amongst themselvesand with respect to that of the town aftorney and other representatives of the respondents, weresubstantially audible throughout the proceeding and, in particular, audible with respect to the twovotes taken at this meeting.2 This court further finds that the only "hushed tones" appeared tohave been with respect to the board members attempting to locate various documents then beingaddressed by the town attomey or other representatives on behalf of the respondents. Such"hushed tones" do not, in this court's opinion, demonstrate a pervasive or willful attempt on thepart of the participants to shield such discussions from the public or to disenfranchise theattendees from their ability to listen to what was then being discussed by the board.3 Thus, thedual purposes of the Open Meetings Law to provide for transparency of public body decision-

rThese two DVD's were submitted under cover dated June20,20I2, in conjunction withthe affrdavits of Georg-Ann Gigliotti and David Salvatore, dated June 13,2012, and attached as

Exhibit A and Exhibit 1, respectively.

2The first vote taken by the board was that pertaining to SEQRA and the second as to theissuance of the special use permit.

3At the beginning of the meeting at Trinity Church the chair of the Board commentedupon the acoustics of the room and the need to insure that all could hear what was occurring.This court's review of the submissions indicates that requests to the board members to speak upwere few in number and served to demonstrate the attendees' ability, in general, to hear what wasbeing discussed.

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making while permitting govemment to carry out its responsibilities were evidenced in thisparticular meeting. (See Matter of Goetschius v. Board of Educ. of the Greenbureh Eleven UnionFree School District,244 ADzd 552,2d Dpl 1997).

b. Location of Meeting and Proper Notice

Petitioners assert that the Board members should have, in the first instance, made provisions forthe accommodation of a greater number of persons than the Toivn Hall would provide given theanticipated number of attendees at the November 22,2011, meeting. Further, petitioners assertthat the move from the Town Hall to the Trinity Church was an inappropriate change in theIocation of the previously noticed location for the meeting and was thus in violation of the OML.Respondents take the position that the change in location was proper under the circumstances andthat notice was in conformity with the directives of the OML.

OML $103 provides singular guidance with respect to where a public body may meet for thepurpose of conducting public business, as is relevant here:

(a) Every meeting of a public body shall be open to the general public,...(d) Public bodies shall make or cause to be made all reasonable ef,forts to ensure

that meetings axe held in an appropriate facility which can adequatelyaccommodate members of the public who wish to attend such meetings.

In the instant proceeding it is clear from the record that the public meeting which was to be heldat the Town Hall was scheduled for a location that was inadequate to accommodate those personswho wished to be present. It is also quite clear from the record that the respondent should haveanticipated, under the extant circumstances, the large number of persons who would attend andthe patent community interest in the project as evidenced by the number of attendees at theNovember 14,2011, meeting, and that the Town Hall was simply too small to accommodatethose who prospectively may attend the November 22,2011, meeting.

Be that as it may, respondent chose to notice the November 22,2011, hearing for the Town Hall.aHowever, after extended discussions given the appearance of a significant number of attendees tothe meeting which exceeded the permiued occupancy, a determination was made to move themeeting to Trinity Church which was a few blocks away from the Town Hall.s As a result of thedecision to move the meeting to Trinity Church a sign was placed on one of the doors of theTown Hall which read:

aNo objections are raised, other than as to the matter of accommodation, by petitionerswith respect to notice of the November 22,201l, meeting.

5The town attorney's efforts to encourage "volunteers" to depart from Town Hall so as tocomply with capacity mandates evidenced a disinclination on the part of the Board to seekaltemative accommodations.

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Plaruring Board Meeting: Trinity Christian ChurchMain St. across from Dollar General (R2530).

The meeting at Trinity Church began at7:55 PM, approximately one hour after the noticedcommencement time of 7:00 PM. Upon a review of the video recordings of this meeting(Gigliotti and Salvatore Exhibits A and l) the project was discussed at length by and amongst theBoard, the town attorney and various representatives on behalf of Monticello. Voting occurrednear the conclusion of the meeting which resulted in a Negativd Declaration of SignificantAdverse Environmental Impact pursuant to SEQRA and the grant of a Special Use Permit toconstruct the proposed project. Both votes reflected a three to two split in favor of such actions.(Grant Affidavit, dated March 22,2012, Ex. C, lll22lll Meeting).

Here, petitioners allege that the notice as provided by respondent failed to comply with the OMLand any actions taken by the Board should therefore be annulled. Respondents oppose such reliefasserting that sufficient notice of the meeting had been given and that efforts had been made toaccommodate the unanticipated large crowd which had appeared. This Court finds, as to thiscomponent of the petition, a substantial failure on behalf of the Board with respect to it'scompliance with the requirements of the OML sueh that petitioners' application must be granted.

OML $104(1) provides that:

Public notice of the time and place of a meeting scheduled at least one weekprior thereto shall be given to the news media and shall be conspicuouslyposted in one or more designated public locations at least seventy-two hoursbefore such meeting.

OML $104(2) turtherprovides that:

Public notice of the time and place of every other meeting shall be given,to the extent practicable, to the news media and shall be conspicuouslyposted in one or more designated public locations at a reasonable timeprior thereto. (Emphasis added).

Absent specific objections to the notice which preceded the November 22,2011, meeting, it isclear that petitioners proffer objections to the change in location from the town hall to Trinity '

Church, insufficient notice of such change and that the church was not an appropriate location fora public meeting given the religious nature of the facility.6

With respect to the change in location the records reflect that the Town Hall facilities wereclearly inadequate to accommodate the number of persons who attended the November 22,2012,

6Petitioners' Verified Petition acknowledges that notice had been given of the November22,2011, meeting. (See tfl02, thereof).

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meeting. Such potential inadequacy should have been anticipated by the Board given the numberof persons attending the November 14, 2011, meeting as well as the substantial communityinterest in this project. While it is true that the OML does not specifr where a meeting is to be

held it is statutorily incumbent upon the public body "to make or cause to be made all reasonableefforts to ensure that meetings are held in an appropriate facility which can adequatelyaccommodate members of the public who wish to attend such meetings." (OML $103(d). Thisprovision seryes to codiff the legislature's intention to require such public bodies to takeaffirmative steps to insure that a facility large enough to accommodate the anticipated attendeesis identified zuI to the commencement of the meeting. So, too, the public body is required toidentify a facility, not only large enough, but "appropriate" so as to permit free and unfetteredaccess so as to insure that the public may attend and listen to the activities of its govemrnent.

Though the Board should be commended for having chosen to move the location of the meetingfaced. with the large number of persons wishing to attend, rather than rigidly adhering to theoriginal chosen location, and such move may be considered reasonable given the circumstances,by doing so the Board failed to comply with OML $104(2) in that it did not adequately notice thechange to Trinity Church. While it may be said that the Board made reasonable efforts "to theextent practicable" to notice the change to Trinity Church, the posted notice appearing on thefront door of the town hall failed to provide an adequate description of the time and place of themeeting as changed. Unless one was fully familiar with the location of Trinity Church the loticeas posted indicating that such was located at "Main Street across from Dollar General" waswoefully inadequate. There being no precise address given for the location of Trinity Church nora time or date as to when the meeting was to be conducted such failed to satisfu the statutoryrequirements and spirit of the OML. In addition, there has been no showing that any notice wasgiven, of any nature, to the media with respect to the changed location, as is also required by theOML. Finally, any such notice must be given "at a reasonable time prior thereto." (Emphasisadded). Moving the meeting and recommencing same within less than one hour does not satisffthis requirement of the OML as such cannot be considered reasonable prior notice of suchchange.

In addition to the foregoing, while it appears from various affidavits submitted on behalf ofpetitioners asserting that requests were made to reschedule the meeting and to do so at a facilityother than Trinity Church, the Board chose to disregard such requests and proceed as they did. Inthe first instance, absent an articulable basis of necessity to conduct the meeting on November22,201l, rather than adjourn such to another day, such necessity not having been demonstratednor addressed in any fashion by respondents, it is this court's finding that to have adequatelycomplied with the OML spirit and intent the meeting of November 22,2011, should have beenpostponed and rescheduled to alarger facility whereupon proper prior notice could have beenprovided.i (SeeMatterof Previdiv. Hirsch, 138 Misc.2d436,437,S.Ct. WestchesterCo., 1988;Comm. on Open Govt. OML-A0-3368, 2001).

tThere has been no showing of exigency or necessity for continuing the meeting asconducted on this occasion.

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Further, to comport with the OML the location of any public meeting must be at a facility whichdoes not involve "a sense of intrusion or intimidation." (See, Comin. on Open Govt. OML-A0-4035,2005). This court has found no case law squarely on point as to whether a house ofworship may or may not be considered "an appropriate facility which can adequatelyaccommodate members of the public who wish to attend" and be in compliance with the OML.However, as demonstrated by the affidavits of petitioners not only was there a sense of beinguncomfortable participating in a public hearing within the confines of a house of worship, it was

also evident that, for whatever reason, persons who had originally sought to attend the meeting at

the town hall did not attend the meeting at Trinity Church. Without engaging in speculation, thiscourt finds that conducting a meeting such as this within the confines of a house of worship, evengiven the relatively sparse appearance of religious symbols, under the circumstances present here

and the affrdavits as submitted, that such selected location may have served to evoke a "sense ofintrusion or intimidation" which caused persons to refrain from attending the meeting.s Suchreluctance on the part of any member of the public to attend a public proceeding due to the natureof the chosen facility in which a public body intends to conduct such public business may serveto diminish such participation and would thus run afoul of the legislative intent evinced by thislegislation.

It must, however, be bome in mind that the instant finding is limited in its scope and iscontextually specific as not all governmental functions within such facilities are prohibited. (See

Doe v. Elmbrook School District,20l2WL2996743, USCA, 7th Circuit, Iuly 23,2012).

Therefore, given the foregoing, this court finds the Board to have substantively failed to complywith the requirements of the OML and, good cause having been shown, finds that such failurewas of such significance that the petitioners' application seeking to annul the actions of theBoard as to both the SEQRA negative declaration and the issuance of the special use permit isgranted, without prejudice to reconsideration by the Board in compliance with this article.

2. Finding the Planning Board in violation of theFreedom of Information Law.

Petitioners assert that the Board is in violation of Public Offrcers Law Article 6 which is entitled"Freedom of Information." (Hereinafter FOIL). In particular, petitioners assert that theinformation requested by Petitioner Frigault consisting of Frigault's October 24,2011, request tothe Board for copies of all records pertaining to the project and his November 23, and November28,201l, requests for documents pertaining to the SEQRA Negative Declaration, the SpecialUse Permit and the draft Host Agreement, as discussed by the Board on November 14,2011,were improperly withheld by the town clerk. Respondent Board acknowledges that at theNovember 14,2011, meeting a"draft. SEQRA document" was reviewed, that o'certain members"of the Board addressed the language in the SEQRA document with respect to the project

sContrary to respondents' position, the basement meeting room of the Trinity Church didevidence at least one religious symbol.

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reducing energy costs, and acknowledged that the Gigliotti and Auger property was discussed butthat no formal action was taken as to any of these issues. (Februarry 27,2\l2,Answer of Board at1fl91-97; February 28,2012, Answer of Landowners at flna6-a8 February 27,2\l2,Answer ofMonticello atnfl9l-97). Petitioner Frigault appealed the denial of his request by letter datedDecember 7,201l, and, as of the date of submission of this matter to Supreme Court, noresponse had been received. However, by Affidavit of J. Michael Naughton dated February 27,2012, Respondent Monticello asserts that Frigault had received all such information as requestedupon submission of the record in this matter on or about February 29,2}l2,thereby rendeiingsuch corresponding causes of action moot and subject to dismissal. (See 11118-12, thereof).e

The Freedom of Information Law (FOIL), Article 6 of the Public Officers Law, was enacted bythe New York State Legislature recognizing, i'[t]he people's right to know the process ofgovernmental decision-making and to review the documents and statistics leading todeterminations is basic to our society. Access to such information should not be thwarted byshrouding it with the cloak of secrecy or confidentiality." (POL $84, Legislative Declaration).

Procedurally, upon receipt of a "written request for a record" the recipient "shall make suchrecord available to the person requesting it, deny such request in writing or fumish a writtenacknowledgment of the receipt of such request and a statement of the approximate date, whichshall be reasonable under the circumstances, when such request will be granted or denied" withinfive business days of such receipt. (POL $S9(3Xa). Should a request be denied, the partyseeking the information must pursue an appeal within thirty days of such denial to the persondesignated to hear the appeal, and such person then has ten business days in which to respond tothe appeal. (POL $(4Xa). Thereafter, an Article 78 proceeding may be commenced to seekreview of the appeal. (POL gS9(4Xb).

Here, while it can be said that Ms. Harris, the Town Clerk, substantially complied with the FOILrequests of October and November,2}|l, timely, the town did not timely address Frigault'sappeal of December 7,2011, as no resolution was forthcoming within the statutorily mandatedten business days nor, for that matter, at any time thereafter.

Petitioner Frigault, however, has now received the requested documents, as set forth above, andthis portion of the petition is therefore moot.r0 The Court of Appeals in 1980 held that aproceeding may be dismissed when "considering questions which, although once live, havebecome moot by passage of time or change in circumstances." (See Hearst Corp. v. Clyne, 50NY2d 707 ,714, 1980). Thus, thg present Article 78 proceeding became moot once the

eThe Reply Memorandum of Law of Attomey Zamelisconfirms that Frigault received allthe documents he had requested when the Record was submitted.

roThough Monticello takes issue with the fact that Frigault had not alleged the outcome ofhis appeal from the denial of access to the requested records it is evident that as of the date of thepetition the Board had not responded and denial is then considered to be constructive in nature.

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respondent provided responses to the petitioner's FOIL requests.

Here, whether petitioner is satisfied with the responses provided or not it is evident that each ofthe written requests as submitted by the petitioner, as well as the appeals which are the subject ofthis proceeding, have been addressed by the respondent during the pendency ofthis proceedingby the disclosure of such materials as requested. Therefore, once responded to by the recipientthe issue before the court is no longer a "live" action and is otherwise deemed moot. (See

Corvetti v. Town of Lake Pleasant ,239 AD2d 841 , 3'd Dpt. 1997). If dissatisfied with theresponses made to the written requests during the pendency of the Article 78 proceeding,petitioner is required to then exhaust its administrative remedies first before seeking courtintervention. Thus, any responses of the respondent for which petitioner is now dissatisfied rnust

be addressed by way of a FOIL appeal rather than the pending action. (See Braxton v.Commissioner. New York Citv Police Department ,283 ADzd 253, l" Dpt., 2001 ; Almodovar v.Altschuller, 232 Ad2d700,3'd Dpt.1996; DiRose v. New York State Division of Parole, 222

AD2d900, 3'd Dpt. 1995).

Though the application by way of the instant petition is now moot, petitioners seek redress byway of the payment of attomey fees as is permissible upon a finding that the respondent hadviolated the mandates of FOIL. (See Global Tel*link v. State of NY Dbpt. of ConectionalServices,68 AD3d 1599,3'dDpt.2009; citing Powhindav. Albany,l4T AD2d236,3'dDpt.1989; Newton v. Police Dept., 183 AD2d 621, I't Dpt. 1992).

However, here the clear impediment to assessing attorney fees as against the respondent Board,the only "agencyt'subject to the provisions of FOIL amongst the many named respondents, is thefact that petitioners did not commence the action against the appropriate party, to wit, the TownBoard of the Town of Richfield or the Town Clerk of the Town of Richfield. Therefore. thiscourt declines to grant attorney fees given the foregoing.rl

3. Annulling and vacating the Planning Board's negative declarationas contrary to the letter and spirit of SEQRA, and declaring that an EIS

must be prepared for the proposed project.

Petitioners here assert that the Board's negative SEQRA (State Environmental Quality ReviewAct) declaration must be annulled as contrary to the letter and spirit of SEQRA. Respondents

rrlt need be noted that once the draft documents had been disclosed and discussed at thepublic meeting, the Town was no longer able to assert that such were not subject to FOIL as

being merely "draft" documents not otherwise subject to disclosure as these documents had nowentered the public domain. (OML $103(e), enacted after the commencement of this action,merely serves to codify this proposition).

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oppose such relief.r2

New York State Environmental Conservation Law Article 8 entitled "Environmental QualityReview" seeks to promote the state's declared policy to "encourage productive and enjoyableharmony between man and his environment; to promote efforts which will prevent or eliminatedamage to the environment and enhance human and community resources; and to enrich theunderstanding of the ecological systems, natural, human and community resources important tothe people of the state." (ECL $8-0101). The Legislature further found and declared, at ECL $8-0103, that:

It is the intent of the legislature that the protection and enhancement of the environment,human and community resources shall be given appropriate weight with social andeconomic considerations in public policy. Social, economic, and environmental factorsshall be considered together in reaching decision on proposed activities.

It is the intent of the legislature that all agencies conduct their affairs with an awarenessthat they are stewards of the air, water, land, and living resources, and that they have anobligation to protect the environment for the use and enjoyment of this and all futuregenerations.

It is the intent of the legislature that all agencies which regulate activities of individuals,corporations, and public agencies which are found to affect the quality of the environmentshall regulate such activities so that due consideration is given to preventingenvironmental damage. (ECL g8-01 03(7-9).

With respect to those "agencies" affected by this particular legislation it is without question, andsuch has not been raised here, that the Town of Richfield Planning Board is an "agency" pursuantto SEQRA. (See ECL $8-0105(2,3). So, too, there can be no question that, as it relates to theapproval of the construction of six wind turbines and ancillary infrastructure,that such is an"action" as defined within Article 8 (See ECL $8-0105(4). Further, there is no question that thisis a Type I action pursuant to the State Environmental Quality Review Act (6 NYCRR 617.1 etseq.).

Pursuant to the rules and regulations a Type I action is defined and described within 5617.4thereof. Specifically, while noting that the list of putative Type I actions is "not exhaustive,"those portions of the provision governing this type of action delineate such by holding that theseactions "mav have a significa and require the preparation ofan EIS (Environmental Impact Statement). However, the fact that an action or project has beenlisted as a Type I action carries with it the presumption that it is likely to have a significantadverse impact on the environment and may require an EIS." (Emphasis added). This provision

r2Petitioners here have standing with respect to the SEQRA claim. (See Gernatt AsphaltProducts. Inc." v.Town of Sardinia, 87 NY2d 668, 1996).

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specifically identifies various types of actions which are deemed to be Type I actions which arepresumed to have a significant adverse environmental impact. (See $617.4(b).

The Board, as the agency in the instant action, chose to complete an Environmental AssessmentForm (EAF) long form, pursuant to $617.6(a)(2). The first part of such EAF may be completedby the project applicant, as was the case here, and the remaining portions, i.e., Part 2 andPart3,are to be completed by the lead agency (i.e., the Board). Part2 identifies the impacts andmagnitude of such impacts while Part 3 addresses the significance or importance of such impacts.If the lead agency during the course of the SEQRA review determines that there "may" be asignificant adverse environmental impact as a result of the proposed project an EnvironmentalImpact Statement (EIS) must then be completed prior to any further substantive action. (See

5617.7). "To require an EIS for a proposed action, the lead agency must determine that theaction may include the potential for at least one significant adverse environmental impact."($617.7(1); emphasis added). "To determine that an EIS will not be required for an action, thelead agency must determine that there will be no adverse environmental impacts or that theidentified adverse environmental impacts will not be significant." ($61 7.7(2); emphasis added).

Here, the Board chose to conduct its SEQRA evaluation by use of an EAF rather than an EIS.With the former the lead agency may determine whether to conduct a public hearing on thematter or not; as to the latter, the lead agency is required to conduct public hearings before a finaldetermination is made with respect to the action. Though the Board chose to proceed by way ofan EAF prior to its final determination of significance on November 22,2011, the record doesreveal that the public was provided the opportunity to address its concerns pertaining to theproject during the course of various public meetings of the Board throughout 2011, although suchwas effectuated primarily by submitting written comments to the Board. The singular noticedmeeting of the Board to address the special use permit with respect to the construction of the sixturbines was contained in the Daily Star on September 6,2011, which is the official publicationutilized by the Town of Richfield for such purpose. (RI866). At the September 12,2071,meeting approximately thirteen speakers were permitted to address the Board and, upon motionof Board Member Andela, the period of time to submit further comments to the Board by thepublic was extended.

Thereafter, a special meeting of the Board was conducted on September 26,2011, and a regularmeeting on October 10,2011, whereat the project was further addressed. A special meeting wasscheduled by the Board for October 24,2011, upon motion of Board Member Sylvester. (RlS70).The October 24,2011, special meeting was conducted by the Board and a variety of issuespertaining to the project were addressed which dealt, inpart, with various matters pertaining tothe EAF. Board Member Andela took up the issue of whether a second public hearing should beconducted as CHA consultant Walter Kalina had reviewed and summarized the numerous writtenpublic comments received and advised that comments were still being received by the clerk.(RI874-1876). The Board conducted a regular meeting on November 12,2011, where theproject was discussed and further review of the special use permit application was adjourned toNovember 22,201I . On November 22, 2011, the Board, by a vote of three to two, issued a

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SEQRA negative declaration and, thereafter, approved the special use permit as submitted for theproject.

In reviewing the merits of the Board's action as it pertains to SEQRA this court is mindful that"it is not the role of the courts to weigh the desirability of any ISEQRA] action or choose amongalternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and

substantively." (Basha Kill Area Assn. ,46 AD3d 1309,

l3l l-1312,3'dDpt.2007; citing Matter of North Country Citizens for Resgonsible Growth.Inc..v. Town of Postdam Planning Bd., 39 AD3d 1098, I 103,2007, quoting Matter of Jackson v.New York Urban Dv. Corp., 67 NY2d 400,416,1986).

Upon such a review this court finds that the Board, in conjunction with its independentconsultant, "took the requisite 'hard look at the potential environmental impacts and [madeJ areasoned elaboration of its findings."' (Id at 1312; internal citations omitted). The extensiveexamination conducted in reviewing this particular project which consisted of geotechnicalevaluations, stormwater pollution prevention, wetland and wildlife studies, visual impact,shadow flicker, avian and bat studies, habitat studies and mitigation review, to name a few,reflects a comprehensive adherence to the spirit and intent of SEQRA. While it may be true that aproject of this magnitude would require a complete EIS as upon first impression it would bediffrcult to find there to be no potential for a finding of significant adverse environmental impact,it is also quite clear, and the petitioners have affirmed, that the Board had before it on November22,20ll,"dataand information which comprise the typical contents of an EIS." (See VerifiedPetition at .l|150, thereof). Thus, the Board, after a significant period of consideration, made a

negative declaration with respect to significant adverse environmental impacts if the project wereto proceed as proposed. Had the Board issued a positive declaration an EIS would have beenrequired pursuant to SEQRA and further public hearings required. As SEQRA extends deferenceto the lead agency to determine whether and to what extent a public hearing may be needed, evenin the face of public opposition, as was the case here, it is the agencies' determination whichgenerally will prevail absent an abuse of discretion. This court further finds that the Board didnot improperly defer mitigation to the Town Board of the Town of Richfield by way of the HostCommunity Agreement as proposed.

4. Annulling and vacating the special permit granted to Monticello Wind LLCas contrary to the letter and spirit of the Town Law, the General Municipal Law,

the Agriculture and Markets Law, and the Town of Richfield Land Use and BuildingManagement Ordinance; Annulling and vacating the special permit granted toMonticello Wind LLC for failure of the Planning Board to properly apply theLand Use Ordinance and failure to make written findings concerning how theproposed project meets the eight specific standards in the Land Use Ordinance.

Town Law $274-b required the Board to conduct a public hearing with respect to the special usepermit, to properly notice such hearing and to thereafter render a determination within sixty-two

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(62) days after the public hearing. (5274-b(6).'' The notice announcing the public hearing mustbe "printed in a newspaper of general circulation in the town at least fiie aais prio,. to the datethereof." Here, the official newspaper of the Town of Richfield is the DailyStar which ispublished in Oneonta and, therefore, within the County of Otsego. Such designation by theTown of Richfield is not subject to present review as no issue has been raised as to whether theTown of Richfield's designation was in conformity with rown Law g64(l t;.'o rL B;;;;;;"gplaced notice of the September 12,2011, public hearing with respectio the applicant,s specialuse permit in the Daily Star which was published on Septembei 6, 20ll,satisfies Town Law5274-b(6) as such was published not l_ess than five days prior to such meeting. (See Myers-

, Og Nair..Zd 1033, S.Ci. f,ulton Co*ty,1972).

Town Law $274-b also requires the town to comply with SEeRA (5274-b(g)and to providenotice to the county planning board at least ten dayi prior to ttre puttic h.uring pursuant to $239-m of the General Municipal Law ($274-b(7). HerL petitioners assert the Board failed to complywith 5274-b and that notice to the county planning board was untimely. petitioners further assertthat such failures void the action as taken by the Board on Novemb er 22,2011.

Town Law $274-b(8) requires the Board to comply with SEQRA with respect to its review of aspecial use permit. In order to comply with sEQriA within the context of gzl+-athe Board must\ave a "complete" application before it is able to proceed with consideration of the project. (See$617'3(c). Pursuant to SEQRA, an application is not complete unless and until (l) a nigativedeclaration has been issued or (2) untlia draft EIS has been accepted by the lead agency. As isrelevant here, the Board did not have before it a complete application until its announcedSEQRA negative declaration of November 22,2011: Therefore, on September 12,20ll,theBoard was not in compliance with 5274-b as the application before it was not complete. As thesingular public hearing on the special use permit was conducted on September 12,2011, and asthe Board had not complied with 5274-b(8) at that time, the public was deprived of theopportunity to have before it that quantum of information necessary upon which to intelligentlyparticipate, comment, and make inquiry of the Board's members or any other relate dpuri.rtThough the Board extended the period of time by thirry days in which to ',render its decision,,upon the consent of the applicant on Novemb er 14,20ll,such extension pertained merely to thedecision making process of the Board. The public hearing, itself; had been effectively closed on

r3The determination to be made by the Board may be extended by consent of the applicantand Board beyond the sixty-two days, as was the case here. (see 5274-b(6).

raSuch objection not having been timely raised this court does not address the propriety ofthe Town's designation of the Daily Star as it relates to actual general circulation within therelevant portion of the County of Otsego.

rsAt this meeting Board Chair Urtz signed page one of the EAF but no negativedeclaration was made at that time; therefore, no .o*fl.t. application was in exisrence.

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September 12,2011, without any noted extension of same within the record. Therefore, after theissuance of the negative declaration on November 22,2011, the Board was required to conduct asecond public hearing prior to approving the special use permit in order to be in conformity withthe mandates of Town Law $274-b. (See Troy Sand & Gravel Co." Inc. v. Town of Nassau, J4Misc.3d l2l9(A), Slip Copy, 2012 WL 334767 , January 26,2012). Such action would haveprovided the public an opportunity to fuither address the Board as it pertained to the SEQRAdetermination and its impact upon the special use permit. This full complement of informationwould have provided the public with the information necessary'to engage the Board at such ahearins, rather than a meeting, with vital information necessary to the formulation of publicdecision making. Absent such information the public's participation is necessarily limited, thusfrustrating the intent of such a hearing.

As no second public hearing was conducted the action of the Board to approve the special usepermit application of Monticello was without the airthority of law.

Petitioner's further allege that the Board failed to timely notice the Otsego County PlanningBoard of the special use permit public hearing in conformity with 5274-b(7).In particularpetitioneis assert that the Board failed to notice the county planning board ten days before thepublic hearing scheduled for September 12,2011. A review of the record clearly indicates thatthe "full statemeht of proposed action" was not delivered to the county planning department tendays prior to the September 201I meeting. Correspondence from the Board, or on behalf of theBoard or Town of Richfield, as the "referring body,'o demonstrates that the full statement was notsubmitted to the county planning board until November 8, 2011, and not received untilNovember 10,201l. (See GML $239-m(l)(b); R2335-2337). Therefore, any suggestion that thecounty planning board had received appropriate statutory notice prior to the September 12,2011,meeting is without support in the record and such notice was not in conformity with 5274-b(7).Board Chair Urtz forwarded by letter dated May 3, 2011, Part I of the EAF, and accompanyingdocuments, and, by letter dated July 13, 2}ll,the FEAF with additional attachments, onto thecounty planning department. Such would generally serve to satisfi the requirements that a "fullstatement of such proposed action" be provided to the county planning board. (See GML $239-m(l)(c); Matter of Batavia First v. Town of Batavia,26 AD3d 840, 841-842,4thDpt.2006,|v.denied, 7 NY3d 709,2006; Basha Kill Area Assn, supra at l3l3). However, Otsego CountyPlanning Director Terry Bliss, by email dated October 7 ,2011, advised Patrick Heaton, ProjectManager for Monticello's consultant, Environmental Design & Research, as.well as the Town ofRichfield Clerk and Supervisor, that the application was not complete as no referral from thetown, as the referring agency, had been made. (See GML $239-m(1)(b); R2333). Therefore, inorder to effectuate the intent of the statute and thus to permit the public to intelligently participatein the public hearing scheduled for September 12,2011, timely notice to the county planningboard was required. Action taken without proper adherence to $239-m is void as beingjurisdictionally defective. (See Long Island Business Aviation Assoc.. Inc. v. Town of Bab)'lon,2004WL 5721573, S.Ct., March 18,2A04; Caruso v. Town of Oyster Bay,172Misc.2d 93, S.Ct.Nassau Co.,1997, Affirmed and modified2l} AD2d 639,2nd Dpt. 1998).

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As an aside, the records reflect that the referral to the county planning board was not completeuntil the Refenal Cover Sheet was executed by the Town of Richfield Supervisor on November8,201I (R2335). Approval thereafter was granted by "Notice of County Planning Department'sRecommendation" dated November 14, 2011 (R2338). While it may appear that the countyplanning board's response was prompt, which it was, it is also clear from the record that thecounty planning board had been well aware of this proposed project for a significant period oftime prior to the submission of the Refenal Cover Sheet and clearly had time to review thismatter in anticipation of such submission

If this court were to assume that the Board had otherwise fully and timely complied with $274-bthe county planning board's approval on November 14,2011, would have been, had a publichearing been held on November 22,20ll,jurisdictionally sufficient for the Board's actions.However, as the public hearing was concluded on September 12,2011, the county planningdepartment's approval of the project two months later did not serve to remedy the defect to theseproceedings.

With respect to petitioners' assertion that the Board did not prepare written findings or otherwiseaddress $7.3(e) of the Land Use and Building Management Ordinance, it is clear that a planningboard must issue a written determination setting forth findings of fact which support its decision.(See Highland Brooks Apartments v. White,40 AD2d 178,4'h Dpt. 1972). However, there is noprovision, under circumstances such as these, that requires the Board to prepare separate findingsas to both the special use permit determination as well as the SEQRA determination. The Boardhaving incorporated the bases upon which it concluded that the various criteria set forth in theLand Use and Building Management Ordinance at $7.3(e) had been identified and addressed bythe language contained in the written rationale for its SEQRA negative declaration, such satisfiedthe Board's requirement to set forth its findings of fact with respect to the $7.3(e) criteria so as topermit proper subsequent judicial review of such action.

This court further finds that respondent adequately complied with Agriculture and Markets Law$305-a in that an Agricultural Data Statement was prepared and dated May 17,2011, (Rl590)and that same had been mailed to the four parties who otherwise would be potentially affected bythe project. (See Affidavit of Monica Harris dated March 27,2012, at fl31, thereof).

Finally, petitioners seek of this court a declaration that the Town of Richfield Land Use andBuilding Management Ordinance prohibits the construction of windmills. In reviewing thisordinance it is evident that an R40 zone, as is the relevant area at which the proposed project is tobe built, is governed by the provisions of $4.1 thereof entitled "R-40 One Acre Residence-Agricultural District-Commercial District." This particular ordinance was originally adopted bythe Town of Richfield on September 10, 1992.In its original version the ordinance delineatedboth permitted uses and uses permitted upon the issuance of a special permit. The ordinancefurther provided for minimum lot size as well as setbacks and the like.

Upon the enactment of Local Law Number 1 of 2004 this particular provision of the ordinance

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was amended by excising from the list of permitted uses those pertaining to apartments. Thisamendment further eliminated by specific name or title those uses which would otherwise bedeemed a permitted use upon the issuance of a special permit. In particular, Subdivision b ofSection l, Article 4.1, now simply reads that "[a]ll other uses must obtain a special permit perSection 7.3 Special Permits[.]" Therefore, the Town of Richfield chose to no longer specificallyidenti$r the permitted uses which are allowed upon the issuance of a special permit.r6

Therefore, if an applicant sought the issuance of a special permit pursuant to this amendedprovision, which was in effect at the time of the present application by Monticello, the issuance ofsuch permit would be dependent upon compliance with $7.3 of the ordinance.

This court finds, from a review of the relevant statutory language, that windmills of any nature arenot specifically prohibited from a permitted use upon the issuance of a special use permit inaccordance with $7.3 of the ordinance.

This court, given the foregoing, need not consider further petitioners' remaining arguments.However, in the event this court were to do so, those matters not otherwise specifically addressedherein are deemed to be without merit.

Conclusion

Upon a review of the facts and circumstances of this matter, and upon the relevant statutory,regulatory and decisional law of this state, it is

ORDERED, that petitioners' First Cause of Action seeking to annul and vacate thedeterminations of the Town of Richfield Planning Board made at the November 22,2011,meeting, as being in violation of the Open Meetings Law is GRANTED, such determinations arehereby annulled andvacated, without prejudice to reconsideration in compliance with the OpenMeetings Law, relevant findings and decisions herein and upon proper statutory notice, and it is

ORDERED, that petitioners' Second Cause of Action finding the Planning Board of the Town ofRichfield to be in violation of the Freedom of Information Law is DENIED as being moot, and itis

ORDERED, that petitioners' Third Cause of Action asserting a failure on behalf of the PlanningBoard of the Town of Richfield to comply with Agriculture and Markets Law $305-a is DENIED,and it is

ORDERED, that petitioners' Fourth Cause of Action seeking to annul the Planning Board of the

r6Petitioners, having raised the claim invalidity of the amending legislation is barred asnot having been raised in the original verified petition, by application of the statute of limitationsand by the doctrine of laches.

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Town of Richfield's determination granting a special use permit to the applicant herein as madeon November 22,2011, as being in violation of Town Law $274-b(6) and (8), for having failed toconduct a public hearing upon a complete application is GRANTED, and such determination ishereby annulled and vacated, and it is

ORDERED, that petitioners' Fifth Cause of Action seeking to annul the Planning Board of theTown of Richfield's determination granting a special use permit to the applicant herein as madeon November 22,2011, as being in violation of Town Law $274-b(7), with respect to timelynotice to the Otsego County Planning Department, is GRANTED, and such determination ishereby annulled and vacated, and it is

ORDERED, that petitioners' Sixth Cause of Action seeking to annul the Planning Board of theTown of Richfield's determination granting a special use permit to the applicant herein as being inviolation of General Municipal Law $239-nn is DENIED, and it is

ORDERED, that petitioners' Seventh Cause of Action seeking to annul the Planning Board of theTown of Richfield's State Environmental Quality Review Act negative declaration as made onNovember 22,201l, for having failed to have identified SEQRA involved and interested agencies,is DENIED, and it is

ORDERED, that petitioners' Eighth Cause of Action seeking to arurul the Planning Board of theTown of Richfield's State Environmental Quality Review Act negative declaration as made onNovember 22,2011, for having failed to properly complete Part 3 of the FEAF is DENIED, and itis

ORDERED, that petitioners'Ninth Cause of Action seeking to annul the Planning Board of theTow.n of Richfield's State Environmental Quality Review Act negative declaration as made onNovember 22,2011, for having failed to properly issue a SEQRA Positive Declaration, isDENIED, and it is

ORDERED, that petitioners' Tenth Cause of Action seeking to annul the Planning Board of theTown of Richfield's State Environmental Quality Review Act negative declaration as made onNovember 22,201l, for having improperly defened mitigation, in violation of SEQRA, isDENIED, and it is

ORDERED, that petitioners' Eleventh Cause of Action seeking to annul the Planning Board of theTown of Richfield's State Environmental Quality Review Act negative declaration as made onNovember 22,2011, for having failed to apply SEQRA criteria for determining significance, isDENIED, and it is

ORDERED, that petitioners' Twelfth Cause of Action seeking to annul the Planning Board of theTown of Richfield's State Environmental Quality Review Act negative declaration as made onNovember 22,2011, is DENIED, and it is

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ORDERED, that petitioners' Thirteenth Cause of Action seeking to annul the Planning Board ofthe Town of Richfield's issuance of a special use permit to the applicant herein as being inviolation of the Town of Richfield Land Use and Building Management Ordinance, is DENIED,and it is

ORDERED, that petitioners' Fourteenth Cause of Action seeking to annul the Planning Board ofthe Town of Richfield's issuance of a special use permit to the applicant herein as being inviolation of the Town of Richfield Land Use and Building Management Ordinance, is DENIED,and it is

ORDERED, that petitioners' Fifteenth Cause of Action seeking to annul the Planning Board ofthe Town of Richfield's issuance of a special use permit to the applicant herein as being inviolation of the Town of Richfield Land Use and Building Management Ordinance, is DENIED,and it is

ORDERED, that petitioners' Sixteenth Cause of Action seeking to annul the Planning Board ofthe Town of Richfield's issuance of a special use permit to the applicant herein upon the assertedgrounds of bias, is DENIED, and it is

ORDERED, that petitioners' application with respect attorney fees and costs is DENIED, and it isfurther

ORDERED, that with respect to petitioner's First Cause of Action the respondent shall complyfully with all provisions of Article 7 of the Public Officers Law and the Planning Board of theTown of Richfield shall participate, within sixty (60) days of the entry of this Decision and Orderor within a reasonable time thereafter, in training sessions concerning the obligations imposed byArticle 7 of the Public Officers Law as conducted by the staff of the Committee on OpenGovemment.

Enter.

DATED: August 16,2012Wampsville, New York

TO: Douglas Zamelis, Esq.Douglas Ward, Esq.Meave Tooher, Esq.David Merzig, Esq.J. Michael Naughton, Esq.Marianne Kincaid, Chief Court Clerk Supreme and County Court

Cerio, Jr.

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