SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ORANGE

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ORANGE

MEMORANDUM OF LAW IN OPPOSITION TO

THE PETITION AND THE PETITION/COMPLAINT

Sive Paget & Riesel, P.C.

460 Park Avenue

New York, NY 10022

Attorneys for the Annexation Petitioners

PRESERVE HUDSON VALLEY, et al.,

Petitioners/Plaintiffs,

- against -

TOWN BOARD OF THE TOWN OF

MONROE, et al.,

Respondents/Defendants.

Ninth Judicial District

Environmental Claims Part

Index No.: 3215-15

HON. FRANCESCA E. CONNOLLY

VILLAGE OF SOUTH BLOOMING GROVE, et

al.,

Petitioners,

- against -

VILLAGE OF KIRYAS JOEL BOARD OF

TRUSTEES, et al.,

Respondents.

Ninth Judicial District

Environmental Claims Part

Index No.: 2015-007410

HON. FRANCESCA E. CONNOLLY

1

TABLE OF CONTENTS

PRELIMINARY STATEMENT ....................................................................................................1

STATEMENT OF FACTS .............................................................................................................3

A. The Annexation Petitions, Their Territory, and Their Signatures .......................................8

B. Much of the Territory in the 164-Acre Annexation is Already Developed ...................... 10

C. No Further Development in the Annexation Territory is Planned or Imminent .................6

D. The Village of Kiryas Joel and the Town of Monroe Have Scrupulously Complied with SEQRA and the GML........................................................................................................11

ARGUMENT ............................................................................................................................... 13

POINT I.

PETITIONERS SEQRA CLAIMS SHOULD BE DISMISSED BECAUSE PETITIONERS LACK STANDING AND

THE ENVIRONMENTAL REVIEW EXCEEDED SEQRAS REQUIREMENTS ................... 13

A. Petitioners Lack Standing to Assert their SEQRA Claims ............................................... 13

1. The Municipal Petitioners .................................................................................... 14

2. Orange County...................................................................................................... 19

3. Monroe Joint Fire District .................................................................................... 20

4. Black Rock Fish and Game Club of Cornwall...................................................... 22

5. Preserve Hudson Valley ....................................................................................... 22

6. The PHV Individual Petitioners ............................................................................ 23

i. John Allegro ............................................................................................. 23

ii. Emily Convers......................... ................................................................. 24

iii. Louis M. Cerqua ....................................................................................... 25

B. The FGEIS Exceeded SEQRA's Standards and Took a Hard Look at All Reasonably Foreseeable Potential Annexation Impacts .................... 26

2

1. SEQRA Has a Deferential Standard of Review .................................................... 26

2. SEQRA Review for an Annexation Does Not Need to Include Study of Rezoning Proposals or Development Plans Which Do Not Exist Yet .............. 26

3. The Village Was Not Obligated to Prepare an EIS At All, Because the Annexation Merely Proposed to Shift a Political Boundary ........................... 29

4. The FGEIS' Analysis for Ten Years into the Future Was Reasonable .................. 29

5. A Supplemental EIS is Not Required Because the FGEIS's Analysis Was Complete and Reasonable .................................................................................... 31

POINT II.

PETITIONERS GML CLAIMS ARE MERITLESS BECAUSE PETITIONERS LACK STANDING AND THE ANNEXATION PETITIONS MEET ALL REQUIREMENTS ........... 34

A. Petitioners Lack Standing for their GML Claims ............................................................. 34

B. Petitioners GML Claims are Meritless Because There Are No Procedural Defects and All Signatures Have Been Validated .......................................... 37

1. There Are No Baroque Boundaries ...................................................................... 38

2. The Territory Proposed for Annexation is Clearly and Accurately Described ..... 39

3. All Signatures Have Been Validated .................................................................... 40

4. The Prior Jurisdiction Rule Does Not Block the 164-Acre Petition from Proceeding, Because the 164-Acre Petition Does Not Conflict with the

507-Acre Petition .................................................................................................. 41

POINT III

THE PHV PETITIONERS CONSTITUTIONAL CLAIMS ARE MERITLESS BECAUSE ALL ANNEXATION PROCEDURES HAVE BEEN RELIGION-NEUTRAL ......................... 42

A. The PHV Petitioners Lack Standing for their Establishment Law Claims ....................... 42

B. The PHV Petitioners Establishment Law Claims are Meritless Because The Annexation Procedures Were Religion-Neutral ........................................................ 43

CONCLUSION ............................................................................................................................ 46

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This Memorandum of Law is submitted in opposition to the Petition and the

Petition/Complaint in the above-captioned lawsuits on behalf of the property owners (the

Annexation Petitioners) who petitioned under Article 17 of the New York State General

Municipal Law (GML) to have their properties annexed into the Village of Kiryas Joel (the

Village) from the Town of Monroe (the Town) in two successive annexation petitions, the

507-Acre Annexation Petition and the 164-Acre Annexation Petition (collectively, the

"Annexations" or "Annexation Petitions").

The Petitioners in the Article 78 special proceeding in which the lead petitioner is the

Village of South Blooming Grove (Index No. 2015-7410) are hereinafter referred to collectively

as the SBG Petitioners and the units of local government that are petitioners therein are

hereinafter referred to collectively as the Local Governments. The Petitioners-Plaintiffs in the

hybrid special proceeding/declaratory judgment action (Index No. 2015-3215) are hereinafter

referred to collectively as the PHV Petitioners.

PRELIMINARY STATEMENT

The Annexation Petitioners are property owners who filed petitions to have their lands

annexed into the Village of Kiryas Joel (the Village or Kiryas Joel) as is their undeniable

right under Article 17 of the General Municipal Law. None of the Annexation Petitioners proposed

any new development of their real property along with the proposed annexations. The annexations,

once approved, would not allow a single new unit of housing to be built or any other development

to occur that had not previously been approved by the Town of Monroe (the Town). No rezoning

was proposed to accompany the proposed annexations. No development plans or applications of

any kind were proffered. There is no dispute as to these facts.

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It is also undisputed that the proposed annexations do not have any effect on the political

boundaries of any of the Local Governments. Nor do the proposed annexations change the political

boundaries of any of the lands of the PHV Petitioners. The annexations that were proposed almost

entirely are limited to the lands owned by the Annexation Petitioners themselves, even though

GML Article 17 would allow them to include significantly more acreage, so long as the Annexation

Petitioners lands comprised more than half of the total assessed value of the lands proposed for

annexation. They chose not to do so and to limit, whenever possible, the lands proposed for

annexation to the lands owned by the Annexation Petitioners themselves.

Contrary to what this Court is being led to believe by all of the Petitioners, significant

portions of the land in the 164-acre annexation have already been developed or have been approved

for development by the Town and multiple other parcels are occupied by homes and other existing

buildings. Thus, the image that Petitioners hope to create of 164 acres of virgin undeveloped land,

that would be raped post-annexation, bears no relation to reality.

And to further put things into proper perspective, even the larger proposed 507-acre

annexation would change the political boundaries of an infinitesimal amount of the land in Orange

County. Excluding waterbodies, Orange County is approximately 812 square miles. At 640 acres

per square mile, Orange County has approximately 519,860 acres of land. The 507-acre

annexation is .00096 of the Countys land area. In English that translates to less than one tenth of

one percent (.096%) of the land in Orange County. The 164-acre annexation is .031% of the land

in Orange County. These amounts of land are bought and sold on a daily basis in Orange County

and no one even raises an eyebrow. But when these tiny amounts of land are proposed to be

annexed into the Village of Kiryas Joel, according to the Petitioners the world will cease turning

on its axis.

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Given the miniscule amount of territory proposed for annexation, coupled with the fact that

significant portions of the 164-acre annexation territory are either already developed or approved

for development, it ought to cause this Court to question just why it is that an unprecedented cabal

of local governments have united to attempt to prevent Kiryas Joel from being enlarged by even

an acre. Research, including Westlaw searches, were undertaken and no instance could be found

in the entire history of the State of New York in which a County and multiple units of local

government whose boundaries would not be altered an iota joined together to expend taxpayer

dollars to oppose an annexation of .096% of the land in the County, no less oppose an annexation

of .031% of the land in the County.

At the public hearing on the annexation, elected officials representing the areas within

many of the Local Governments came to the podium to fervently, in some instances vehemently,

declare their opposition to the proposed annexations. They were greeted by cheers and applause

from the hundreds of people who attended the public hearing to vociferously oppose the growth

of Kiryas Joel by even one acre. There was little civilized debate at the public hearing, instead

there was a display of demagoguery and whipping of the opposition into a fervor. There were

website postings in which thinly veiled threats were made against Town Board members who were

reminded that they would still live in the Town after they cast their vote on annexation. These are

the same people who come before this Court claiming that they are here to protect the environment

and are ostensibly motivated by the most high-minded of goals. The Annexation Petitioners are

confident that this Court is quite cognizant of what the truth is.

It is no coincidence that Eric Adams, the African-American Brooklyn Borough President,

felt the need to drive all the way from New York City to Orange County to speak at the annexation

public hearing. And he came to deliver a message that should never have had to have been spoken.

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He spoke of how proud he was to have the Hasidic community in his Borough of Brooklyn. It was

a sad day in Orange County when an outsider and a representative of a racial group that knows all

too well the bitter bite of discrimination had to drive to a public hearing to remind those in

attendance that all people of all races and religions have the right to live in our country and

associate with one another. His words were eloquent and heartfelt and given the riots in Brooklyn

in which African-Americans and Hasidim were pitted against one another when David Dinkins

was Mayor, it was moving to hear an African-American elected official speak of the Hasidim as

brothers, not as aliens.

Unfortunately, as this litigation confirms, minds were already made up to the contrary.

This litigation is only the latest manifestation of a long history detailed and documented in the

Villages Memorandum of Law of the concerted efforts by those residents and elected officials

who surround Kiryas Joel to attempt to use the courts prevent the Villages growth and the growth

of the Satmar Hasidic community who call the Village home. Perhaps one of the most revealing

claims in this regard is the assertion that proposed annexations would violate the Establishment

Clause. While, in truth, this claim is likely more the product of the attempt of the PHV Petitioners

counsel to be creative, at some point lawyerly creativity gives way to the fact that lawyers are

advocating for their clients. And these PHV clients have embraced the belief that the fact that the

Annexation Petitioners are Hasidic landowners and have petitioned to have their lands annexed

into Kiryas Joel purportedly violates the Establishment Clause. Putting aside for the moment the

lack of technical legal merit to the Establishment Clause claim, the Court should not lose sight of

what the PHV Petitioners are saying when stripped of constitutional jargon. Accordingly to the

PHV Petitioners, the only group who could not lawfully petition for annexation into Kiryas Joel

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are the Hasidim. No clearer statement could be made to confirm that the PHV Petitioners core

motivation is to prevent the growth of the Hasidic community in Kiryas Joel

Turning to the details of the SBG Amended Petition and the PHV Amended

Petition/Complaint in respect of the claims that the Village, as lead agency, violated the New York

State Environmental Quality Review Act (SEQRA), the Court need not reach the merits because

Petitioners lack standing. None of the Petitioners can establish any concrete environmental injury

falling within the zone of interests protected by SEQRA. All of the injuries asserted by Petitioners

are based on speculative impacts from hypothetical developments that have not been proposed.

Not a single injury is articulated, no less demonstrated, from the only actions being analyzed in

the Final Generic Environmental Impact Statement (FGEIS) the change in political boundaries

associated with the two proposed annexations. The decisional law is clear that the FGEIS for the

Annexation Petitions was not required to study speculative rezoning and development plans which

have not been proposed and do not yet exist. Indeed, given that no development has been proposed

along with the annexations, the Village Board could have lawfully adopted a negative declaration.

It should not be punished for having done more than was required under SEQRA and its FGEIS

provides a very important guide for the environmental review which will accompany development

that may occur on the annexed lands in the future post-annexation. Thus, analyses in the FGEIS

certainly confirm that the Village Board took a hard look at the potential environmental impacts

of the proposed annexations and made a reasoned elaboration to demonstrate why the proposed

annexations would not generate any significant unmitigated adverse environmental impacts. See

infra, Point I.

Petitioners' GML claims fail, because the assorted claims of procedural defects Petitioners

proffer have all been disproved, conclusively, in the record, multiple times. The Village Board,

8

the Town Board, as well as the Annexation Petitioners, have documented carefully and definitively

that the Annexation Territory does not have "baroque boundaries"; that the description of the

Annexation Territory is clear and accurate; and that all petition signatures are lawful and have been

properly validated and submitted in accordance with the GML. See infra, Point II.

Finally, the PHV Petitioners' Establishment Clause claim, which is not joined by the SBG

Petitioners, also fails. The PHV Petitioners contend that the Annexations would violate the

Establishment Clause because they would advance religious interests. However, because the

Annexation Petitioners followed a religion-neutral process codified in the GML, the mere fact that

the Annexation Petitioners are Satmar Hasidic property owners petitioning to have their lands

annexed into a community whose population is also overwhelmingly Satmar Hasidic cannot give

rise to an Establishment Clause violation. See infra, Point III.

For all these reasons, elaborated in greater detail infra, the Petitions should be dismissed.

STATEMENT OF FACTS

A. The Annexation Petitions, Their Territory, and Their Signatures

The initial annexation proposed was the 507-acre annexation. The processing of that

annexation petition was delayed because the Village Board and Town Board disagreed as to

which of them should serve as lead agency. The dispute was submitted to the Commissioner of

the New York State Department of Environmental Conservation (DEC) for resolution. While

that dispute was pending, the 164-acre annexation was proposed. As to it, the Town Board

acceded to the Village Board serving as lead agency. Thereafter, the DEC Commissioner ruled

that the Village Board should serve as lead agency for the 507 acre annexation. Thereafter, both

annexation petitions were reviewed in the FGEIS and the Village Board and Town Board each

adopted findings statements based on the FGEIS.

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A memorandum filed with both the Village and Town Boards on behalf of the Annexation

Petitioners, dated September 3, 2015, details the reasons for the proposed annexations, why they

meet the standards in the GML, why the annexations would be consistent with smart future

growth of the Village; and the purposes for the proposed annexations. (TVJR 12928 12958). In

regard to the latter, the Memorandum details extensively the various services that the Village

provides and the Town does not. It is the provision of these services, including sidewalks, street

lighting, and emergency services, that was the principal motivation for the proposed annexations.

(TVJR 12939 12944.)

The Memorandum also addresses in exhaustive detail each and every one of the procedural

or technical objections raised by the annexation opponents, which are echoed in this litigation.

There, the assessed values were confirmed and documented (TVJR 12944 12945) and each and

every challenged petition signature was explained and validated (TVJR 12946 12954). As to the

adequacy of the description of the territory proposed to be annexed, Exhibit A to the 507-Acre

Petition sets forth a legal metes-and-bounds description of the territory to be annexed, which is

wholly adequate to detail the scope on its own. (TVJR000022.) Exhibit B to the 507-Arce Petition,

which includes almost 150 pages, provides an additional level of detail which far exceeds that

required under the Municipal Annexation Law. Ex. B has two principal components: 1) a map

depicting every single parcel proposed for annexation, and identifying them by S.B.L. number;

and 2) Property Description Reports, retrieved from official Orange County records, for every

single parcel proposed for annexation. The Property Description Reports provide significant

additional information, including the street address of the property, its owners, and the S.B.L.

(listed as Tax Map ID #). (TVJR 000001.) The 164-Acre Petition contains a similarly

comprehensive Ex. A and Ex. B. (TVJR000725-898.)

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The boundaries of the proposed annexations are rational, not baroque. Essentially, the

proposed annexations are for the territory owned by the annexation petitioners with as little

additional territory as possible. (TVJR 12956 12958.) Others who did not sign the annexation

petitions are themselves free to petition for annexation if they desire it. Notably, none of the

property owners who have been left out of the annexations are among the Petitioners challenging

the proposed annexations.

B. Much of the Territory in the 164-Acre Annexation is Already Developed

As discussed infra at Point I, Petitioners attempt to manufacture a controversy by claiming

that great environmental harm is imminent if the 164 Annexation is allowed.

To bolster their dubious SEQRA claims, Petitioners seek to portray the Annexation

Territory as an untouched wilderness, but the facts belie this narrative. Much of the land in the

164-annexation territory is already developed, bordering developed areas, or is itself already

approved for development by the Town. Moreover, virtually all of the parcels proposed to be

annexed border existing boundaries of the Village of Kiryas Joel and function as infill around

indentations in those borders. These parcels are in the natural path of the growth and expansion of

the Village and do not represent any kind of encroachment into isolated wilderness space.

C. No Further Development in the Annexation Territory is Planned or Imminent

Belying Petitioners claims that Annexation will auger unchecked and unregulated rampant

development, the undisputed facts are that no development of any kind has been proposed in

conjunction with either the 164 or the 507 acre annexations. Indeed, in an affidavit previously

filed with the Court, the Village Administrator of Kiryas Joel has also confirmed that no

development plans have been submitted. Ex.1, Szegedin Affirm 74; 82.1

1 Additionally, as stated in the EAF prepared by the Village for the 507-Acre Annexation, the Annexation does not

involve the approval of any specific development plans. TVJR000423-35.

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Indeed, no development is allowed in the Village as of right. Ex. 1, Szegedin Affirm 84-

90. The Village Code requires site plan approval for every principal use being undertaken on land

even a single family home on a single lot, something that very few municipalities require. See

Village of Kiryas Joel Code (Village Code) 155-21 (mandating site plan review for all

permitted principal uses, including a single family home); and Village Code 155-21(A)

(containing detailed requirements for site plan approval, regarding physical dimensions, location,

size of the use, nature and intensity of the operations, parking requirements, among other

requirements).

The general requirements for site plan approval prevent any of the wanton clear-cutting or

wholesale devastation of property imagined by the Petitioners. The Village Code explicitly

prohibits any land from being used, designed or arranged to be used in any manner other than in

conformity with the Code. Village Code 155-11. Applications for site plan review must detail

how the proposed use of the site will be in harmony with the rest of the district where it is

located, explain that the landscaping will not hinder or discourage development and use of adjacent

land and buildings, and generally show that the planned use will not disturb the area.

In sum, there is simply no factual basis for the repeated insinuations and assumptions by

the Petitioners that a rash of excessive, unregulated development is imminent. Any future

development which might occur in the Annexation Territory would be fully subject to federal,

state, and local regulation, and a more informed, specific, and balanced discussion of the merits of

any future project that is proposed can be had at the time that project is proposed.

D. The Village of Kiryas Joel and the Town of Monroe

Have Scrupulously Complied with SEQRA and the GML

As discussed infra at Point I.B.2, an Environmental Impact Statement (EIS) was not

required to complete SEQRA review of the Annexation Petitions. Nevertheless, the Village, once

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confirmed as SEQRA lead agency after being subjected to protracted dispute,2 elected to prepare

a Generic Environmental Impact Statement ("GEIS") in order to help prepare for future project-

specific SEQRA review and generally to assist future public planning efforts. Ex. 1, Szegedin

Affirm., 26.

The Village exceeded SEQRA's procedural requirements by publishing a draft scope for

comment, conducting a public scoping session, offering an extended public comment period on

the draft scope, and offering an extended public comment period on the draft GEIS. Ex. 1, Szegedin

Affirm., 30-31; 38; TVJR000902-3; TVJR000904-5; TVJR000918-1341; TVJR002392-3.

The result was a FGEIS, running into hundreds of pages, which comprehensively assessed

potential impacts of the Annexations, responded to all public comments, and met and exceeded all

of SEQRA's requirements, as discussed infra at Point I.B. The FGEIS reasonably concluded that

no significant impacts would result from the Annexations. TVJR011890-12754. The FGEIS was

followed by detailed findings statements that set forth the reasoned elaboration for the conclusions

reached by the Village and Town Boards, as the two involved governmental agencies.

The Village and Town Boards both applied a similar level of care in their certification that

the Annexation Petitions met all procedural requirements of the GML. To this end, The Village

and the Town Boards offered an extended written public comment period and held a joint public

hearing on the Annexations.

After reviewing voluminous public comments, many directed to purported procedural

issues, both the Village and the Town concluded that the Annexation Petitions fully complied with

all of the procedural requirements of the GML's Annexation Law. See TVJR013307-9 (Village of

Kiryas Joel certifying the 507-Acre Petition as completely procedurally sufficient); TVJR013310-

2 See TVJR000716.

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2 (Village of Kiryas Joel certifying the 164-Acre Petition as completely procedurally sufficient);

TVJR013325-48 (Town of Monroe certifying both Annexations Petitions as completely

procedurally sufficient) ("Defects in the sufficiency of the petitions have been raised by members

of the public. The Town Board concludes that the defects claimed do not exist.").

Notwithstanding the foregoing, Petitioners have persisted in their discredited claims of

procedural defects in the Petitions, which have already received a full and fair hearing by two

municipal governments and been conclusively rejected. The Annexation Petitioners have already

responded to these alleged defects in great detail, including through obtaining affidavits from

certain of the Annexation Petitioners confirming the validity of their signatures. TVJR012910-3.

ARGUMENT

POINT I.

PETITIONERS SEQRA CLAIMS SHOULD BE DISMISSED BECAUSE PETITIONERS LACK STANDING AND THE

ENVIRONMENTAL REVIEW EXCEEDED SEQRAS REQUIREMENTS

Petitioners allege that the environmental review of the Annexations under SEQRA was

defective. SBG Amended Petition 1-8 (cc); PHV Amended Petition 1-5. The Court need not

reach the merits of these claims because all of the Petitioners lack standing. Petitioners SEQRA

claims also fail on the merits, notably because they are premised on speculation about the impacts

of hypothetical future projects, based on rezonings and development plans which do not presently

exist and, as such, are outside the scope of SEQRA.

A. Petitioners Lack Standing to Assert their SEQRA Claims

As the New York Court of Appeals has explained, SEQRA does not authorize any person,

regardless of location or connection to the challenged project, to file suit to challenge alleged

SEQRA defects. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 770 (1991) (Had

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the Legislature intended that every person or every citizen have the right to sue to compel SEQRA

compliance...it could easily have so provided; it did not.). As the Court observed, allowing

everyone to seek review could work against the welfare of the community by proliferating

litigation...Citizens have an interest in efficient governmental action as well as an interest in

adequate environmental review. Id. at 779 (emphasis in original and internal citation omitted).

Instead, a would-be SEQRA litigant must demonstrate individual standing based on an

actual injury, a requirement derived from the common law tradition that the hard, confining, and

yet enlarging context of a real controversy leads to sounder and more enduring judgments. Soc'y

of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 773 (1991). The core requirement of

standing is that a litigant must demonstrate injury in fact. Id. at 772-73. This means that the

claimed injury must be concrete and must represent an actual legal stake in the matter being

adjudicated. Id. at 772.

This injury in fact must also be distinct from that of the general public. Soc'y of Plastics

Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 774-75 (1991). As the Court of Appeals has

explained, while governmental action affecting land use can indirectly affect...a wide area,

only litigants with a direct interest which is different in kind or degree from that of the public

at large present a sufficiently concrete and personal controversy to qualify for standing. Id.; See

also In re Schulz v. NYDEC, 186 A.D.2d 941, 942, 589 N.Y.S.2d 370, 371 (3d Dept 1992)

(holding that standing to challenge government actions involving land use, on SEQRA grounds

or otherwise, requires a showing that the challenger will suffer direct harm, that is, injury which is

in some way different from that of the public at large).

Additionally, where the litigants claim is based on a statute, the alleged injury in fact

must fall within the zone of interests intended by the Legislature to be protected by the statute.

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Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 777 (1991). For SEQRA, these

involve harms to cognizable environmental interests. Id. The purpose of this zone of interests

test it to ensure litigants are not misusing the statute to delay or defeat governmental action and

thereby advanc[ing] ends outside the legislative purview. Id. at 778. The Petitioners here

represent a textbook case of an attempt to misuse SEQRA to delay or defeat the governmental

approval of the proposed annexations.

1. The Municipal Petitioners

As a preliminary matter, the Appellate Division, Second Department has been clear that a

municipality must establish standing by asserting rights that are its own, not the collective

individual rights of residents. In re Vill. of Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 74, 91

(N.Y. App. Div. 2d Dept 2007); See also Vill. of Pomona v. Town of Ramapo, 94 A.D.3d 1103,

1105 (N.Y. App. Div. 2d Dept 2012).

These specific municipal rights must arise from: 1) approval authority over a project; 2)

municipal real property interests allegedly affected by a project; 3) municipal services allegedly

affected by a project; or 4) municipal interests in determining community character. Vill. of

Pomona v. Town of Ramapo, 94 A.D.3d 1103, 1106 (N.Y. App. Div. 2d Dept 2012); In re Vill. of

Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 74, 91-93 (N.Y. App. Div. 2d Dept 2007).

Notably, these rights do not include generalized complaints of environment harms

afflicting the geographic area in which the municipality is situated. In re Vill. of Chestnut Ridge v.

Town of Ramapo, 45 A.D.3d 74, 91 (N.Y. App. Div. 2d Dept 2007) (A municipality, however,

does not suffer from that traffic or noise in the same way. A municipality, as such, neither breathes

foul air, nor hears loud noises, nor waits in traffic.). Accordingly, there is no presumption of

environmental injury to a municipality merely based on its proximity to a project. Id.

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The below table catalogues the types of harms claimed by the Municipal Petitioners. For

the reasons explained following the table, none of these purported harms can suffice as a basis for

SEQRA standing.

Table 1. Alleged Standing Injuries

Municipality Traffic from

future

hypothetical

development

Demand for

County

sewage

treatment

from future

hypothetical

development

Change in

community

character

from future

hypothetical

development

Impact on

drinking

water

resources

from future

hypothetical

development

Impact on

natural

resources

from future

hypothetical

development

Village of South

Blooming Grove

X X X X

Town of

Blooming Grove

X X

Village of

Monroe

X X X X X

Village of

Woodbury

X X X

Town of

Woodbury

X X X

Village of

Harriman

X X X

Village of

Cornwall-on-

Hudson

X

17

Town of

Cornwall

X

Town of Chester

X

Source: SBG Amended Petition, 16-23; 25.

To start, all of the above claimed injuries are based on speculation about the purported

impacts from future hypothetical development in the Annexation Territory. To emphasize, not one

of these alleged injuries arises out of the proposed annexations which are the sole actions being

analyzed under SEQRA. In other words, none of the alleged injuries arises from the mere shift of

the political boundaries between the Town and the Village. Thus, as a matter of law, all of the

alleged injuries are not harms resulting from the proposed annexations and they fall outside the

relevant zone of interests and cannot serve as a base for standing. Moreover, because they rely on

speculation about hypothetical future development and rezonings which have not yet been

proposed or submitted, they cannot suffice as the type of "concrete" injury in fact necessary to

confer standing. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 773 (1991).

Next, five of the Municipal Petitioners (the Village of South Blooming Grove, the Village

of Monroe, the Village of Woodbury, the Town of Woodbury, and the Town of Chester) claim

that if future development occurs in the Annexation Territory in the manner in which they

postulate, the Orange County Sewer District #1, operated by Orange County, will struggle to meet

their sewage needs. In addition to being speculative, this claim fails as a matter of law, because

the Sewer District owns the sewer facilities and is responsible to delivering this service, not the

municipalities. In re Vill. of Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 74, 93 (N.Y. App. Div.

2d Dept 2007) (Municipalities claim that a project might cause an overflow of the Sewer

District's facilities in the future cannot be a basis for standing since there is no claim that the

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Villages themselves own or otherwise have responsibility for these facilities.); See also Vill. of

Pomona v. Town of Ramapo, 94 A.D.3d 1103, 1106 (N.Y. App. Div. 2d Dept 2012).

Moreover, many of the lands proposed to be annexed are within Orange County Sewer

District #1 and would be entitled to sewer service independent of annexation. Even further, as

discussed in detail by the Village in its Memorandum of Law, the County is obligated to provide

certain amounts of sewer capacity to the various units of local government within the District. The

County is required to increase its sewage treatment capacity to meet the growth needs of all of

these municipalities, including the Town and the Village. Thus, with or without annexation

community growth will require an increase in sewer capacity. Annexation does not change that

calculus one iota. Thus, there is no injury suffered by any of the Local Governments, including

the County, due to the proposed annexations.

Three of the Municipal Petitioners (the Village of Monroe, the Town of Woodbury, and

the Village of Harriman) claim that their hypothesized future development in the Annexation

Territory will cause generalized harm to natural resources within their boundaries, such as open

spaces and rivers. However, as a matter of law, municipalities may cannot assert standing for such

generalized ecological injuries to their residents. In re Vill. of Chestnut Ridge v. Town of Ramapo,

45 A.D.3d 74, 91 (N.Y. App. Div. 2d Dept 2007) (A municipality, however, does not suffer from

that traffic or noise in the same way. A municipality, as such, neither breathes foul air, nor hears

loud noises, nor waits in traffic, and is not permitted to assert the collective individual rights of its

residents[.]) (citation omitted); In re Long Island Pine Barrens Socy, Inc. v. Planning Bd. of

Town of Brookhaven, 213 A.D.2d 484, 485-86 (N.Y. App. Div. 2d Dept 1995) ([G]eneralized

allegations that this project will have a deleterious impact upon the aquifer...are insufficient to

establish their standingThat is, the subject allegations do not demonstrate that the individual

19

petitioners will suffer an environmental injury which is any way different in kind and degree from

the community generally) (citation omitted).

Finally, five of the Municipal Petitioners (the Village of South Blooming Grove, the

Village of Monroe, the Village of Harriman, the Village of Cornwall-on-Hudson, and the Town of

Cornwall) claim that future development that they speculate will occur will strain an aquifer on

which they rely for drinking water. However, these claims arise out of the general anticipated

growth rate of the entire Village of Kiryas Joel, not merely the Annexation Territory, and rely on

claims regarding wells that have not been dug yet. The Village of Kiryas Joel's lawful, responsible

planning for sufficient water, all in conformity with DEC's process of permitting, cannot be twisted

into an injury inflicted on its neighbors giving rise to standing to sue. The fact that these local

governments Petitioners feel aggrieved by the Village of Kiryas Joel's planning to ensure

sufficient water for its residents throughout the Village (not merely the Annexation Territory)

makes plain that this purported environmental injury from the Annexations is a mere pretext to

political opposition to the growth and flourishing of the Village of Kiryas Joel at all.

2. Orange County

Orange County lacks standing, as an initial matter, because it only alleges speculative

harms based on hypothetical future development in the Annexation Territory, which as a matter of

law do not qualify as injury in fact giving rising to standing. Soc'y of Plastics Indus., Inc. v. Cnty.

of Suffolk, 77 N.Y.2d 761, 773 (1991); SBG Amended Petition 24. Moreover, Orange Countys

claims of potential socioeconomic impacts to various county-wide programs are unavailing

because those programs are administered on a county-wide basis, and the issue of whether

projected population growth occurs more densely within the Annexation Territory or is dispersed

throughout the county does not affect their net impact on the County.

20

The claims of harm to the Countys finances and operations cannot serve as a basis for

standing because claims of economic harms to a would-be litigant do not fall within the zone of

interests of SEQRA. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 777-78

(1991). More broadly, because the annexation is not proposed to change any boundary of the

County, but merely moves a political boundary which is entirely internal to the County, and

because the County will be obliged to render services to the Annexation Territory regardless which

municipality it falls within, it is apparent that the County cannot establish any concrete injury from

the Annexations at all.

Finally, for the reasons discussed above, the annexations would have no impact on sewer

capacity requirements because no development is proposed. Thus, claims of injury relating to the

County Sewer District are unavailing.

3. Monroe Joint Fire District

The Monroe Joint Fire District lacks standing, as an initial matter, because it only alleges

speculative harms based on hypothetical future development in the Annexation Territory, which

as a matter of law do not qualify as injury in fact giving rising to standing. Soc'y of Plastics

Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 773 (1991); SBG Amended Petition 26.

Additionally the claims of harms to the Fire Districts finances due to speculative allegations about

increased demands without an increased budget cannot serve as a basis for standing because

claims of economic harms to a would-be litigant do not fall within the zone of interests of SEQRA.

Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 777-78 (1991). Moreover, the

claims themselves are absurd. It makes no sense that there would be more demand on the Joint

Fire District for services when the Village has its own Fire Department which would serve the

Annexation Territory.

21

4. Black Rock Fish and Game Club of Cornwall

The Black Rock Fish and Game Club of Cornwall (BRFGC), as a nonprofit corporation,

must meet the test for associational or organizational standing. Soc'y of Plastics Indus., Inc. v.

Cnty. of Suffolk, 77 N.Y.2d 761, 775 (1991); SBG Amended Petition 27. An association must

demonstrate three required elements to pass this test: 1) one or more of its members would have

standing to sue; 2) the associations purpose is germane to alleged interest in the litigation; and 3)

neither the asserted claim nor the appropriate relief requires the participation of individual

association members. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 775 (1991).

As a threshold issue, BRFGC fails this test because it does not establish that any one of its

members would have standing to sue. In re Long Island Pine Barrens Socy, Inc. v. Planning Bd.

of Town of Brookhaven, 213 A.D.2d 484, 486 (N.Y. App. Div. 2d Dept 1995) ([T]he Long Island

Pine Barrens Society lacks standing because it has failed to meet the key requirement to

organizational standing; i.e., that one or more of [the Society's] members would have standing to

sue) (citation omitted and emphasis in original). The SBG Petitioners merely make a generalized

claim that the annexation will cause adverse ecological impacts to a creek in Woodbury, but do

not offer any demonstration that any actual specific member utilizes that creek. Moreover, the

allegations of harm to the creek are based on a speculative chain of inferences, connecting the not-

yet-granted Village of Kiryas Joel application for a permit for a well in Mountainville with

hypothetical not-yet-even-proposed future Village of Kiryas Joel applications for more water

permits in the area, which might someday cause the hydraulically down gradient Woodbury

Creek to dry up such that BRFGC members cannot fish there. SBG Amended Petition, 27.

The sole affidavit offered to substantiate BRFGCs claim to standing is from James

McGee, Jr., who is the President of the BRFGC. McGee, Jr, Aff. 1. However, although this

22

affidavit states that unspecified, unnamed members of BRFGC use Woodbury Creek for fishing,

the affidavit is conspicuously bare of any claim that Mr. McGee himself uses the creek. Id.

Accordingly, as the SBG Petitioners do not demonstrate the standing of any individual member of

BRFGC, BRFGC cannot itself establish standing.

Neither can BRFGC salvage its claim to standing based on its status as the owner of

property in the Town of Cornwall and the Village of Woodbury (which BRFGC concedes is in no

way proximal to the Annexation Territory). BRFGC still fails to demonstrate a concrete, injury in

fact to its property that is distinct from the public at large. Soc'y of Plastics Indus., Inc. v. Cnty. of

Suffolk, 77 N.Y.2d 761, 774 (1991). As discussed above, BRFGC relies solely on a highly-

speculative chain of claims regarding future reductions in the capacity of Woodbury Creek, which

BRFCGs property abuts. McGee, Jr., Aff. 2.

This contrived injury cannot suffice as a basis for SEQRA standing. Even were it not so

contrived, alleged ecological damage to a shared, public water resource cannot suffice as an injury

different from the public at large. In re Long Island Pine Barrens Socy, Inc. v. Planning Bd. of

Town of Brookhaven, 213 A.D.2d 484, 485-86 (N.Y. App. Div. 2d Dept 1995) ([G]eneralized

allegations that this project will have a deleterious impact upon the aquifer...are insufficient to

establish their standing to raise this claim. That is, the subject allegations do not demonstrate that

the individual petitioners will suffer an environmental injury which is any way different in kind

and degree from the community generally) (citation omitted).

5. Preserve Hudson Valley

As with BRFCG, Preserve Hudson, as a not-for-profit corporation, must meet the

associational test for standing. PHV Amended Petition 6. Like BRFCG, Preserve Hudson also

fails to establish standing because it also fails to establish the standing of any individual member,

23

a threshold requirement for associational standing. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk,

77 N.Y.2d 761, 775 (1991). The PHV Amended Petition makes reference to only one specific

member, John Allegro. However, for the reasons explained infra, John Allegro cannot himself

establish standing to bring claims under SEQRA, and so Preserve Hudsons attempt to establish

standing must also fail. In re Long Island Pine Barrens Socy, Inc. v. Planning Bd. of Town of

Brookhaven, 213 A.D.2d 484, 486 (N.Y. App. Div. 2d Dept 1995).

6. The PHV Individual Petitioners

(a) John Allegro

John Allegro fails to establish standing because he does establish a concrete injury different

from that suffered by the public at large. PHV Amended Petition 11-15. Mr. Allegro attempts

to rely on a claim that his residence is proximal to the 507 Acre Annexation (though he apparently

concedes that his residence is not proximal to the 164 Acre Annexation), because it is 550 feet

away. Id.

However, the law is clear that mere proximity - without specific, concrete claims of

environmental harm different from that affecting the public - does not establish standing for

SEQRA purposes. In re Barrett v. Dutchess Cnty. Legislature, 38 A.D.3d 651, 653-54 (N.Y. App.

Div. Dept 2007) (The proximity of their residence to the site of the proposed Project is

insufficient, without more, to confer standing); 55 N.Y. Jur. 2d Environmental Rights 139

([T]he mere proximity of one's property to an approved land use or project is not, in itself,

sufficient to confer standing to assert a SEQRA challenge, absent a showing of specific

environmental harm.).

To extent that proximity can even be of significance, "the relevant distance is the distance

between the petitioner's property and the actual structure or development itself, not the distance

24

between the petitioner's property and the property line of the site." In re Tuxedo Land Trust, Inc.

v. Town Bd. of Town of Tuxedo, 112 A.D.3d 726, 728 (N.Y. App. Div. Dept 2013). Because

Allegro pleads solely the distance from his residence to the "property line" of the Annexation

Territory, and not carry his burden of establishing his proximity to any proposed or even possible

structure, his proximity-based claim fails as a matter of law.

Notwithstanding the foregoing, property located at a similar distance from a proposed

project (530 ft) has been recognized not to have demonstrated any direct harm different from that

affecting the public. In re Oates v. Vill. of Watkins Glen, 290 A.D.2d 758, 760 (N.Y. App. Div.

Dept 2002).

And indeed, with respect to claims of specific harms, the PHV Petitioners provide only a

vague, threadbare recitation that Mr. Allegro will be subject, in unspecified ways, and to an

unspecified degree, aesthetic harms and harms to community character. PHV Amended

Petition, 14. These generalized allegations cannot suffice in establishing a harm greater than that

suffered by the public at large. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 774

(1991).

The PHV Amended Petition also claims that Mr. Allegros daughter would suffer harms

due to unstudied adverse impacts of the annexation on the MWCSD, but as this unnamed,

unspecified daughter is not a party to the suit, and Mr. Allegro is not seeking to act as a

representative of his daughters interests in this suit, this claim is irrelevant. Moreover, the nature

of the alleged harms is entirely unspecified, making it impossible to discern whether it falls within

the zone of interests of SEQRA or not, and since Petitioners bear the burden of demonstrating

standing, this means the claim of standing must fail.

(b) Emily Convers

25

Emily Convers similarly fails to demonstrate standing. PHV Amended Petition 16. Ms.

Convers allegations concerning injury are even more sparse than those of John Allegro. Unlike

John Allegro, Ms. Convers makes no claim that she resides in proximity to the proposed

Annexations. PHV Amended Petition 16. Ms. Convers makes a similar claim to Mr. Allegro that

she has children in the MWCSD school system who will be affected by conspicuously unspecified

adverse impacts of the Annexations, but for the same reasons explained above in connection to

Mr. Allegro, this claim must fail. PHV Amended Petition 18. Ms. Convers also states that she is

a customer of OCSD#1, which will suffer unspecified adverse impacts from the annexation.

PHV Amended Petition 17. However, this claim is fatally vague and general, and cannot amount

to an injury distinct from the public at large that is served by OCSD#1. The mere incantation of

the phrase adverse impacts cannot suffice to establish SEQRA standing.

(c) Louis M. Cerqua

Louis M. Cerqua also fails to demonstrate standing. PHV Amended Petition 19. Mr.

Cerquas allegations of injury are the most thin of any of the Petitioners, and comprise solely the

formulaic, one-sentence recitation that he will suffer adverse, unstudied impacts on aesthetics

and community character. Absolutely zero elaboration is provided. PHV Amended Petition 21.

This is a grossly inadequate attempt to establish SEQRA standing, and it should not be

countenanced. Because it is impossible to discern any rational basis by which Mr. Cerqua could

be understood to suffer a direct injury distinct from that affecting the public at large, he cannot

meet his burden of demonstrating standing. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77

N.Y.2d 761, 774 (1991).

26

B. The FGEIS Exceeded SEQRA's Standards and Took a

Hard Look at All Reasonably Foreseeable Potential Annexation Impacts

1. SEQRA Has a Deferential Standard of Review

Judicial review of an agency determination under SEQRA is limited to whether it was made

in accordance with lawful procedure, and whether the agency identified the relevant areas of

environmental concern, took a hard look at them, and made a reasoned elaboration of the basis

for its determination. In re Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d

219, 231-32 (2007) (citations omitted); Akpan v. Koch, 75 N.Y.2d 561, 570 (1990).

When reviewing an agencys determination regarding an actions potential for adverse

environmental impact, a court is limited to reviewing whether the agencys decision was arbitrary,

capricious, an abuse of discretion, or affected by an error of law. Akpan, 75 N.Y.2d at 570; Chinese

Staff & Workers Assn v. N.Y.C., 68 N.Y.2d 359, 363 (1986). Further, SEQRA analyses need not

achieve scientific unanimity; if there is a rational basis and substantial evidence in the record to

support the lead agency's assessment and finding, it must be upheld. In re Chu v. N.Y. Urban Dev.

Corp. d/b/a Empire State Dev. Corp., 47 A.D.3d at 542, ( 1st Dept 543 2008); In re Residents for

More Beautiful Port Washington v. Town of Hempstead, 149 A.D.2d 266, 266-67 (2d Dept 1989);

In re Brooklyn Bridge Park Legal Defense Fund v. NY Urban Dev. Corp., 50 A.D.3d at 1029, 1031

(2d Dept 2008). As detailed below, Petitioners raise only vague and legally irrelevant issues

concerning the review, which are far from sufficient to justify nullifying the FGEIS.

2. SEQRA Review for an Annexation Does Not Need to Include

Study of Rezoning Proposals or Development Plans Which Do Not Exist Yet

Petitioners contend that the FGEIS was obliged to incorporate speculative future rezonings

and development, and claim the FGEIS is defective for this reason. SBG Mem. p. 13; PHV Mem.

p. 20. Yet where a proposed annexation does not include a specific rezoning proposal or

27

development plan, the law is crystal-clear that SEQRA review for that proposed annexation need

only assess the direct impacts of shifting political boundaries (such as, for example, changes in the

municipality responsible for delivering services and similar matters). In re City Council of the City

of Watervliet v. Town Bd. of the Town of Colonie, 3 N.Y.3d 508, 520 (2004) ("Since the annexation

proposal lacks a specific project plan that has been officially submitted or a rezoning proposal that

changes the use for which the property may be utilized, [SEQRA review] will necessarily be

limited to the annexation itself and its effects. Where, on the other hand, an annexation is premised

upon a formal project plan, environmental review will be more extensive and must address the

specific use of the property in evaluating the related environmental effects."); In re City of

Middletown v. Town Bd. of Town of Wallkill, 54 A.D.3d 333, 337 (N.Y. App. Div. 2d Dept 2008)

(a "speculative conclusion as to how [property owners] intended to use the property" does not need

to be studied under SEQRA); Cross Westchester Dev. Corp. v. Town Bd. of the Town of

Greenburgh, 141 A.D.2d 796, 797 (N.Y. App. Div. Dept 1988) ("The record does not establish

that the petitioners have any specific plans for the development or use of the parcel. In the absence

of a specific project plan, which has been actually formulated and proposed, a DEIS is not

required.").

Fatally for Petitioners' claims, there is no development plan proposed for the Annexation

Territory and no rezoning proposed. Thus the SBG Petitioners' quotation of DEC's SEQR

Handbook to the effect that for a rezoning, a municipality should consider "the most intensive uses

allowable under the proposed zoning" is inapposite - there is no "proposed zoning" to study. PHV

Amended Petition 9.

Additionally, because SEQRA is a law of comprehensive and general applicability, any

governmental action that might occur in the future pertaining to the Annexation Territory, such as

28

a rezoning or the approval of a site plan would be subject to SEQRA at that time. Because at such

time, specifics would be available to analyze, this is a much more sensible time to conduct detailed

SEQRA review.

3. The Village Was Not Obligated to Prepare an EIS At All,

Because the Annexation Merely Proposed to Shift a Political Boundary

Under New York law, a municipal annexation of more than 100 contiguous acres is a Type

I action subject to SEQRA, which means that a municipality must assess whether there is the

potential for significant environmental impacts. 6 NYCRR, 617.4; In re City Council of the City

of Watervliet v. Town Bd. of the Town of Colonie, 3 N.Y.3d 508, 518 (2004). A Type I action

carries a "presumption" that significant environmental impacts may be possible, but this does not

mean an EIS is required for all annexations. 6 NYCRR 617.4(a).

While Type I actions are more likely to require the preparation of an EIS than Unlisted

actions, 6 NYCRR 617.4(a), [a]n EIS may usually be dispensed with in connection with a

Type I action. In re Vill. of Chestnut Ridge v. Town of Ramapo, 99 A.D.3d 918, 927 (2d Dept

2012) (citing In re Inc. Vill. of Poquott, 11 A.D.3d at 540 (rejecting challenge that Type I action

required an EIS); See also, e.g., Acton v. Wallace, 112 A.D.2d 581, 582 (3d Dept 1985) (noting

that an EIS is not required in all type I actions); In re Hells Kitchen Neighborhood Assn v.

N.Y.C., 81 A.D.3d 460, 461-62 (1st Dept 2011) (no basis for argument that a project that meets

multiple Type I thresholds requires greater scrutiny); In re Friends of Port Chester Parks v. Logan,

305 A.D.2d 676, 677 (2d Dept 2003) (same).

Accordingly, if Petitioners' supposed requirement to "analyze" phantom, non-existent

development plans is dropped, all that remains are potential impacts on the provision of local

government services as the political boundaries move. It would have been entirely rational for the

29

Village of Kiryas Joel to conclude, based on the completion of an EAF in compliance with

SEQRA, that no significant impacts would occur, and no EIS would be necessary.

This would have significantly shortened the SEQRA review process and led to a more

efficient decision-making process (which, it bears emphasis, is also in the public interest in

SEQRA matters). Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 779 (1991)

("Citizens have an interest in efficient governmental action as well as an interest in adequate

environmental review.").

However, out of a desire for transparency, and to provide a head start to future SEQRA

review of specific proposed projects, the Village of Kiryas Joel elected to complete a Generic

Environmental Impact Statement, though not legally required to do so, voluntarily exceeding

SEQRA's requirements. Ex. 1, Szegedin Affirm 26.

4. The FGEIS' Analysis for Ten Years into the Future Was Reasonable

In order to aid in future planning, the EIS set forth an analysis of reasonably projected

development in the Annexation Territory for a ten-year period. TVJR002514-48. Petitioners have

argued that this projection was not for a long-enough time period into the future. SBG Amended

Petition 9; PHV Amended Petition 258-9. This contention is unavailing as a matter of law.

New York courts have explicitly upheld the lead agency's rational discretion to select a

build horizon suiting the circumstances of the proposed project. In re Develop Don't Destroy

(Brooklyn) v. Urban Dev. Corp., 59 A.D.3d 312, 318 (N.Y. App. Div. 1st Dept 2009) ("[T]he

ultimate accuracy of the [build year] estimates is neither within our competence to judge nor

dispositive of the issue properly before us, which is simply whether the lead agency's selection of

build dates based on its independent review of the extensive construction scheduling data obtained

from the project contractor may be deemed irrational or arbitrary and capricious, and it may not.

30

The build dates having been rationally selected, there can be no viable legal claim that the EIS was

vitiated simply by their use.") (internal citation omitted); Comm. to Pres. Brighton Beach and

Manhattan Beach, Inc. v. Council of N.Y.C., 214 A.D.2d 335, 337 (N.Y. App. Div. 1st Dept 1995)

("[W]e cannot conclude that the [lead agency] failed to take the requisite hard look at the relevant

areas of environmental concern. We find no basis to conclude that the use of 1995 as a 'build year'

was spurious.").

In recognition of the difficulty of projecting the behavior of market forces with precision

far into the future, New York City's City Environmental Quality Review Manual, a leading

authority on SEQR best practices, provides that 10 years is an appropriate range of study for

generic actions where future results depend on market forces:

For some generic actionswhere the build-out depends on market conditions and other variables, the build year cannot be determined with precision. A build year ten (10) years

in the future is generally considered reasonable for these projects as it captures a typical

cycle of market conditions and generally represents the outer timeframe within which

predictions of future development may usually be made without speculation[.]3

See also In re Chinese Staff & Workers' Ass'n v. Burden, 88 A.D.3d 425, 429 (N.Y. App. Div. 1st

Dept 2011) aff'd, 19 N.Y.3d 922 (2012) (finding 10 years to be an appropriate) ("In accordance

with accepted methodology, as set forth in the 2001 CEQR Technical Manual[the lead agency]

considered both a 'reasonable worst-case scenario' in a future 'no-action' condition, as compared

to a future 'with-action' condition over a 10year period.").

New York decisional law does not require a SEQRA review that engages in "unsupported

speculation" by projecting analyses farther into the future than the qualified experts retained by

the lead agency recommend. In re Fisher v. Giuliani, 280 A.D.2d 13, 21 (N.Y. App. Div. 1st Dept

3 CEQR Technical Manual (Mar. 2014), "Choosing the Analysis Years," p. 2-4. The manual does state that "generic

actions that would facilitate large-scale development" may "sometimes" warrant a build year which extend beyond

10 years, but this is inapplicable to the annexation, which does not alter or expand any development rights (unlike a

rezoning, for example). Id.

31

2001) ("At its core, petitioners' argument is that the [lead agency] was required to look beyond 10

years from the enactment of the zoning amendments and assume that every single square foot of

buildable area will eventually be developed, regardless of the likelihood that it will occur. This

argument is without merit since the [lead agency] was only obligated to examine environmental

consequences into the foreseeable future, not to examine theoretical possibilities that were steeped

in nothing more than unsupported speculation. To adopt a ten-year time frame was hardly an

irrational examination of the long-term foreseeable future.") (internal citation omitted).

5. A Supplemental EIS is Not Required Because

the FGEIS's Analysis Was Complete and Reasonable

Petitioners claim that a Supplemental EIS is required both to extend the analysis further

into the future and to apply a study methodology to various issues which matches Petitioners'

preferences. SBG Mem. p. 5-7; PHV Mem. P. 27-28. These claims fail as a matter of law.

DEC's regulations provide that a Supplemental EIS may be required by the lead agency

where there are "(a) changes proposed for the project; (b) newly discovered information; or (c) a

change in circumstances related to the project." 6 NYCRR, 617.9(a)(7)(i)(a-c). None of those

circumstances is present here.

As a starting point, although Petitioners request more detail concerning certain impacts, it

is the very purpose of a Generic Environmental Impact Statement to treat impacts in a general

manner, leaving certain details to future project-specific EISs. 6 NYCRR, 617.10(a) ("Generic

EISs may be broader, and more general than site or project specific EISsThey may be based on

conceptual information in some casesThey may present and analyze in general terms a few

hypothetical scenarios that could and are likely to occur.").

Therefore, to the extent that Petitioners might wish for a more granular analysis, the

appropriate time for this kind of analysis would be when a specific rezoning or project is proposed.

32

Petitioners concerns may be fully - and more productively - addressed at that time. SEQR

Handbook (2010), p. 150 (providing that project-specific EISs may be prepared following a GEIS

once specific projects are proposed).

Petitioners also raise a variety of complaints regarding the methodology with which

specific potential impacts were studied in the FGEIS. However, these complaints are almost

entirely premised on their erroneous arguments that an EIS for an annexation is required to a) study

rezoning and development plans where they do not presently exist, and b) project impacts beyond

the 10 years recommended by qualified experts. For the reasons explained supra at Points I.B.1

and I.B.2., these contentions fail as a matter of law.

To the extent that any of Petitioners' complaints might be construed as separate and apart

from their objections concerning the need to speculate regarding future development and the need

to extend study beyond 10 years, those contentions must fail because they amount to nothing more

than a "battle of the experts." Where, as here, the lead agency has relied upon qualified experts

who have reached their conclusions rationally, petitioners may not unseat that finding simply by

hiring a counter-expert. If, as here, the record furnishes a rational basis and substantial evidence

to support FGEIS's conclusion, it must be upheld, and "scientific unanimity" is not required. Chu,

47 A.D.3d at 542, 543; See also Stork Rest. Inc. v. Boland, 282 N.Y. 256, 267 (1940) (Where

there is conflict in the testimony produced before the Board, where reasonable men might differ

as to whether the testimony of one witness should be accepted or the testimony of another witness

be rejected, where from the evidence either of two conflicting inferences may be drawn, the duty

of weighing the evidence and making the choice rests solely upon the Board. The courts may not

weigh the evidence or reject the choice made by the Board where the evidence is conflicting and

room for choice exists. [citation omitted].); See also Roosevelt Islanders for Responsible

33

Southtown Dev. v. Roosevelt Island Operating Corp., 291 A.D.2d 40, 55 (1st Dept 2001); Aldrich

v. Pattison, 107 A.D.2d 258, 276 (2d Dept 1985).

One particular issue emphasized by the Petitioners is the appropriate methodology for

projecting demographic growth in the Village of Kiryas Joel. SBG Amended Petition 64. The

FGEIS concludes that the Annexations would not induce growth in the general vicinity of the

Annexation Territory, primarily because the Village has a historically high and consistent

population growth rate of approximately 5% per year. FGEIS at 3.2-1. The FGEIS found that if

the Annexation Territory were not joined to the Village, then the Village's projected population

growth would settle in Kiryas Joel itself or in the surrounding area. FGEIS at 3.2-7. Petitioners

claim to find this implausible, but this misunderstands the unique cultural dynamics of the Kiryas

Joel community. To a greater degree than in neighboring municipalities, the norm is to settle close

to family, especially for women, a factor which has fueled Kiryas Joel's consistent high growth for

many years.

Critically, to point out that the demographics of Kiryas Joel are unusual as compared to its

neighbors cannot suffice to establish that the expert demographic analysis cited in the FGEIS is

therefore irrational. The Petitioners may not like or agree with the FGEIS's demographic findings,

but as they are supported by qualified experts and substantial evidence, Petitioners may not

overrule them.

To sum, it is plain from Petitioners' papers that their suits represent typical examples of the

misuse of SEQRA to slow down a municipal action for political reasons. Soc'y of Plastics Indus.,

Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 778 (1991); See also Hells Kitchen Neighborhood Assn

v. N.Y.C., 81 A.D.3d 460, 462 (1st Dept 2011) ([G]eneralized community objections are

insufficient to challenge an environmental review) (citation omitted). The first sign of this

34

political agenda is the inability of any of the Petitioners to demonstrate any genuine environmental

injury sufficient to establish standing at all. The vaporous, speculative nature of the alleged

environmental injuries, coupled with the determined ferocity with these Petitioners have opposed

the expansion of the Village of Kiryas Joel, suggest non-environmental motives for the opposition.

The second sign is that the purported SEQRA defects collapse under scrutiny and defy well-

established, crystal-clear case law holding that an EIS for an annexation need only study rezoning

and development plans that are actually extant at the time of the SEQRA review, and that a 10-

year review horizon is regarded as well within the norm for SEQRA. Accordingly, Petitioners'

SEQRA claims should be dismissed in their entirety.

POINT II.

PETITIONERS GML CLAIMS ARE MERITLESS BECAUSE PETITIONERS LACK STANDING AND

THE ANNEXATION PETITIONS MEET ALL REQUIREMENTS

A. Petitioners Lack Standing for their GML Claims

Under New York law, a person has standing to challenge a municipal annexation if he or

she would suffer direct harm, injury that is in some way different from that of the public at large

and if this injury falls within the zone of interests sought to be protected by the GMLs

Annexation Law. Commandeer Realty Assocs., Inc. v. Allegro, 49 Misc. 3d 891, 900 (N.Y. Sup.

Ct. Westchester Cnty 2015), citing Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761,

773-74 (1991).

An example of a direct interest that is different from that of the public at large which

falls within the zone of interests of the Annexation Law is owning taxable property in the territory

proposed for annexation. Commandeer Realty Assocs., Inc. v. Allegro, 49 Misc. 3d 891, 900 (N.Y.

Sup. Ct. Westchester Cnty 2015).

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None of the Petitioners own property in the territory proposed for annexation, and none

can allege any direct injury at all, as discussed in connection with Petitioners lack of SEQRA

standing supra at Point I.A, let alone any direct injury falling within the zone of interests of the

Annexation Law.

Moreover, it is difficult to see how it would even be possible for any of the Petitioners to

assert an injury within the zone of interests of the Annexation Law, given that purpose of the

Annexation Law is to provide a process for the orderly effectuation of property owners right under

the New York State Constitution to exercise self-determination as to which municipality governs

their property. N.Y. Gen. Mun. Law 702 (It is the intention of the legislature by the enactment

of this article to provide a municipal annexation law pursuant to [the New York State Constitution],

which provisions specify basic prerequisites to the annexation of territory from one local

government to another including (1) the consent of the people, if any, of a territory proposed to be

annexed and (2) the consent of the governing board of each local government, the area of which is

affected, upon the basis of its determination that the annexation is in the over-all public interest);

See also N.Y. Const. art IX, 1(d).

As the Court of Appeals has explained, the public interest at stake in an annexation is

limited to the benefit or detriment to [1] the annexing municipality, [2] the territory proposed to

be annexed, and [3] the remaining governmental unit from which the territory would be taken.

City of Utica v. Town of Frankfort, 10 N.Y.3d 128, 132-33 (2008), citing N.Y. Gen. Mun. Law

712 and N.Y. Const. art IX, 1(d).

None of the Petitioners asserts or can assert any injury that falls within this zone of

interests. The Municipal Petitioners are all municipalities outside the Annexation Territory who

have no role in the Annexation Laws statutory scheme and will not be impacted in any tangible

36

way by the Annexations; Orange County has no role in this Annexation because the Annexations

do not affect county boundaries, and will not be impacted in any tangible way by the Annexations;

the Monroe Joint Fire District asserts only self-interested purported economic injuries, which do

not fall within the zone of interests sought to be protected by the Annexation Law; the Black Rock

Fish and Game Club owns property far outside the Annexation Territory, has no statutory role in

the Annexations and will not be impacted by the Annexations; and the PHV Petitioners have no

statutory role in the Annexations and will not be affected in any way by the Annexations.

The lack of standing to bring claims under the Annexation Law of the PHV Petitioners and

the Black Rock Fish and Game Club, all private, non-governmental parties who own no property

within the territory proposed for annexation or within the annexing municipality, is particularly

glaring. See 2 McQuillin Mun. Corp. 7:39.47 (3d ed.) ([A] private entity which owns no real

property in the annexed areas or within the annexing municipality has no standing to challenge

either annexations by petition or annexations by ordinance.).

Additionally, the two organizational petitioners, Preserve Hudson Valley and the Black

Rock Fish and Game Club cannot meet the test for associational standing, as they do not

demonstrate that they have any natural person member who would meet the test for standing as an

individual. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 775 (1991). Notably,

the sole named member of Preserve Hudson Valley, John Allegro, concedes that he owns no real

property in the annexed areas or within the annexing municipality. 2 McQuillin Mun. Corp.

7:39.47 (3d ed.).

Preserve Hudson Valley and the Black Rock Fish and Game Club also fail to meet the

associational standing tests requirement that the Annexation Law claims asserted are germane to

their purpose as organizations. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 775

37

(1991). Both organizations purport to be concerned with environmental matters, but none can or

does claim any organizational purpose pertaining to municipal affairs, local government, voting,

self-determination, New York State constitutional rights, or any other theme pertinent to the

Annexation Law. For this reason alone, the Annexation Law claims of Preserve Hudson Valley

and the Black Rock Fish and Game Club must be dismissed for lack of standing.

Finally, the Petitioners arguments to overturn the Town of Monroes finding that the 164-

Acre Annexation is in the public interest and the Village of Kiryas Joels finding that the 164-Acre

and the 507-Acre Annexations are in the public interest must fail as a matter of law for lack of

standing, because these determinations may only be challenged by an involved government board

filing a petition to the Appellate Division. Farlow v. Town Bd. of the Town of Brookhaven, 92

A.D.2d 938, 938 (N.Y. App. Div. 2d Dept 1983) ([P]etitioners had no standing to commence the

instant proceeding. A challenge to a governing board's determination that annexation is not in the

overall public interest must be initiated in the Appellate Division of the Supreme Court by an

affected governing board).

Accordingly, the Petitioners GML claims should be dismissed for lack of standing.

B. Petitioners GML Claims are Meritless Because There Are No Procedural Defects and All Signatures Have Been Validated

Petitioners attempt a variety of challenges to the adequacy of the Annexation Petitions, but

for the reasons explained below, none succeed. SBG Mem., p. 32; PHV Mem., p. 40. Notably, as

discussed supra in the Statement of Facts, Petitioners' claims of procedural defects in the

Annexation Petitions have been comprehensively assessed and rejected by two municipal

governments. See Record TVJR013307-9 (Village of Kiryas Joel certifying the 507-Acre Petition

as completely procedurally sufficient); Record TVJR013310-2 (Village of Kiryas Joel certifying

the 164-Acre Petition as completely procedurally sufficient); Record TVJR013325-48 (Town of

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Monroe certifying both Annexations Petitions as completely procedurally sufficient) ("Defects in

the sufficiency of the petitions have been raised by members of the public. The Town Board

concludes that the defects claimed do not exist.").

1. There Are No Baroque Boundaries

To start, Petitioners contend that the Annexation Petitions are legally inadequate because

the territory proposed for annexation has baroque boundaries. SBG Mem., p. 32; PHV Mem., p.

39.

Yet, as plainly indicated by the 507-Acre Annexation Map and the 164-Acre Annexation

Map, the parcels proposed for the Annexations almost all constitute infill of crenellations in the

Villages existing boundary. See Record TVJR000421; TVJR000422; TVJR000736.

Moreover, parcels adjacent to the Village that were not included in the petition are owned

by parties who did not wish to join the petition. If at any time they would like to be joined to the

Village via annexation, they are free to do so by following the necessary procedures.

Notwithstanding the above, it is important to note that there are several examples of cases

where a New York court has taken note of the irregular boundaries of a proposed annexation,

and nonetheless found that annexation to be lawful and in the overall public interest. Bd. of Trustees

of Inc. Vill. of Warwick, Orange Cnty. v. Town Bd. Of the Town of Warwick, Orange Cnty., 56

A.D.2d 928, 928, 393 N.Y.S.2d 47, 47-48 (N.Y. App. Div., 2d Dept 1977); Common Council of

the City of Middletown v. Town Bd. Of the Town of Wallkill, 29 A.D.2d 561, 286 N.Y.S.2d 369

(N.Y. App. Div. 2d Dept 1967).

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2. The Territory Proposed for Annexation is Clearly and Accurately Described

Finally, the Petitioners claim that they cannot discern, on the basis of the 164-Acre

Annexation Petition, what the scope of the territory to be annexed is. PHV Mem. p. 45; SBG Mem.

p. 38-40. These complaints are unavailing.

To start, Ex. A to the 507-Acre Petition sets forth a legal metes-and-bounds description of

the territory to be annexed, which is wholly adequate to detail the scope on its own. TVJR000022.

In addition, Ex. B to the 507-Arce Petition, which includes almost 150 pages, provides an

additional level of detail which far exceeds that required under the Municipal Annexation Law.4

Ex. B has two principal components: 1) a map depicting every single parcel proposed for

annexation, and identifying them by S.B.L. number; and 2) Property Description Reports, retrieved

from official Orange County records, for every single parcel proposed for annexation. The

Property Description Reports provide significant additional information, including the street

address of the property, its owners, and the S.B.L. (listed as Tax Map ID #). TVJR 000001.

The 164-Acre Petition contains a similarly comprehensive Ex. A and Ex. B. See

TVJR000725-898.

Accordingly, any contention that the Annexation Territory cannot be discerned is plainly

contradicted by the record. Indeed, the two responsible municipal governments, who have actual

jurisdiction over the property at issue, had no difficulty discerning the boundaries of the proposed

Annexations. See TVJR013307-9; TVJR013310-12; TVJR000437.

4 Ex. B to the Petition for Annexation of 164 Acres from the Town of Woodbury to the Village of Kiryas Joel.

40

3. All Signatures Have Been Validated

The Petitioners also assert that certain of the signatures on the Annexation Petitions are

defective. As discussed supra in the Statement of Facts, Petitioners have previously presented

these same claims to the Village and the Town of Monroe, which rejected them after examining

the evidence. Notably, the Village prepared a minutely detailed chart of each comment letter and

each challenged signature, explaining why the purported procedural defects were unavailing.

TVJR013031-306.

Moreover, the Annexation Petitioners themselves have already comprehensively addressed

and responded to every single claim of signature defects that were raised in the voluminous public

comments received on the 164-Acre Annexation Petition and the 507-Acre Petition. TVJR012914-

58.

Notwithstanding the above, the SBG Petitioners attempt to challenge the signature for Tax

Lot 65-1-32 on the grounds that the signatory is identified as signing on behalf of Upscale 4

Homes Corp. while the owner of record is Upscale Y Homes Corp. SBG Pet. 84.

However, this is a mere clerical error of a single letter, and does not meet the legal standard

for invalidating the signature. New York courts have been clear that such a minor error is not fatal,

because the governing statutory standard is substantial compli[ance]. See N.Y. Gen. Mun. Law

705 (1)(d)(McKinney 2015) (providing that boards reviewing an annexation petition must assess

whether the petition substantially compl[ies] in form or content with the provisions of this

article.) (emphasis added); Skidmore Coll. v. Cline, 58 Misc. 2d 582, 585 (N.Y. Sup. Ct.

Schenectady Cnty. 1969) aff'd, 32 A.D.2d 985 (N.Y. App. Div. 3rd Dept 1969) (ordering town

board to find that annexation substantially complies with the provisions of [A]rticle 17 of the

General Municipal Law despite minor technical irregularities); Mitrus v. Nichols, 171 Misc. 869,

41

870 (N.Y. Sup. Ct. Broome Cnty. 1939) (The mistake [in the annexation petition] was not fatal.

It was at most a technical irregularity. That it may be disregarded is clear.).

The PHV Petitioners also take issue with a number of signatures, but these claims are

unavailing. PHV Mem., p. 40. To start, these Petitioners claim that the signature for Tax Lot 65-

1-32 must be invalidated because Upscale 4 Homes Corp. is not an active business corporation

in New York. However, as recognized by the Local Government Petitioners, the actual owner is

Upscale Y Homes Corp. More generally, there is simply no legal requirement that only active

New York State business corporations can petition as property owners for annexation, so the entire

contention is a non-starter. PHV Mem., p. 44

The PHV Petitioners also challenge the signatures for Tax Lot 1-3-1.3, claiming that

because only three out of the four owners signed, there is no valid signature for that parcel. PHV

MOL, p. 61. This contention is unavailing, because the fourth owner authorized the other three to

sign on his behalf. See TVJR012914-58.

The PHV Petitioners additionally challenge the signatures for Tax Lots 1-3-14.21; 1-3-15;

and 1-3-40, on the basis that they are owned by the same two corporate entities, but only one

signatory has signed for them. PHV Mem., p. 61. This contention also fails, because the signatory

was authorized by both corporate entity owners. See TVJR012914-58.

Thus, at most, Petitioners assert a handful of clerical errors, which truly illustrates their

desperation to manufacture a controversy to litigate over. This falls far short of overturning the

Petitions for failure to meet the "substantial compliance" standard.

4. The Prior Jurisdiction Rule Does Not Block the 164-Acre Petition from

Proceeding, Because the 164-Acre Petition Does Not Conflict with the 507-Acre Petition

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Finally, the PHV Petitioners, in an argument not joined by the SBG Petitioners, claim

that the 164-Acre Petition is blocked by the prior jurisdiction rule. PHV Mem., 50.

The PHV Petitioners contend that because the 164-Acre Petition concerns some of the

same land as the 507-Acre Petition, it cannot proceed until the 507-Acre Petition is completely

processed, and they cite to this Court's decision in Commandeer Realty Assocs., Inc. v. Allegro,

49 Misc. 3d 891 (N.Y