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Friday, September 19, 2014

Tyre Casino Opponents Take it on the Chin

Casino opponents in Tyre, NY suffered a stinging and sweeping legal defeat when a judge thoroughly dismissed their suit against the Town Board.  The plaintiffs were challenging what they consider to be inadequate, hasty or incomplete environmental reviews in complying with the requirements of SEQRA.  We wrote about the lawsuit....and how the SEQRA process seems to favor the municipal boards trying to push these casino projects this post.  The decision, embedded below, demonstrates how and why the latter is the case, and surely comes as a cold slap in the face not only to the folks in Tyre, but to any other groups that are attempting to halt a casino on a challenge based on SEQRA.

One part of the decision in particular seems to simply fly in the face of common sense.  The 7th and final cause of action was based on the Town failing to make a draft of Part 2 of the SEQRA form (the Full Environmental Assessment Form).....and again, I'd ask you to please refer to this post for the background if you are interested....available to the public at or prior to the June 12 meeting at which the Town Board issued its "negative declaration" that the project would not cause any negatively material environmental effects.  Justice W. Patrick Falvey pointed out that the burden is on the public to request such documents, and noted that a request made by the main Petitioner Desiree Dawley at that meeting was made to one of the Town's engineers, and therefore and technically not to the town board. (ugh.) Particularly bizarre was that "the court finds that the Town did not utilize a high speed internet connection, nor did it maintain a regularly and routinely updated website.  Thus the Town was not required to post the resolutions.."  Oh man.....seriously?  Besides the fact that this would, by extension, relieve any government agency of any public notification requirement if they didn't endeavor to maintain a modern website (and/or if the town didn't have a local newspaper) seems to me that the Town of Tyre website functions just fine.  In fact, I obtained the SEQRA forms that appear in the aforementioned background post from that very site.

The main points of the decision in my view are this:

 - The oral discussions that the Board had at the June 12 meeting constituted, in the Court's eyes, completion of the critical Part 3 (in which the lead agency - the Town Board in this case - articulates its reasoning behind its dismissal of potential environmental concerns that are raised in Part 2), even though it wasn't actually put in writing and posted until July 11.  This could certainly be taken as a signal by other town boards who have not yet completed SEQRA that shortcuts to finishing the paperwork are wholly permissible.

This part of the decision comes despite the fact that, as pointed out to me by a concerned resident of Tyre, according to an October 2013 revision of the model EAF (as noted on the Department of Environmental Conservation (DEC) website) in order for the form to be "adequately completed," "Part 3 must contain a discussion of why the relevant impacts identified in Part 2 may, or will not have, a significant adverse environmental impact."  That clearly was not the case on June 12.

 - It affirms what we discussed previously - that the Town Board, as the "lead agency," has wide leeway to determine what is or, more applicable in these cases, what is not a potential environment hazard.  The decision takes us step-by-step through the record of the discussions at the June 12 meeting about each of the items identified in Part 2.  Some of the deliberations - and I think I'm probably being generous in that description - included consultations with one of the town's attorneys or engineers (for whatever that is worth, considering that they are in the employ of the Town Board).  But consider this segment: 
The Board completed their review of the environmental impacts at the June 12, 2014 meeting by covering impact on human health, consistency with community plans and community character, with the Board members each stating "no" regarding significant environmental impact for each of these potential impacts.
And viola!  Just like that, based on the judgment of Town Board members with a vested interest in the outcome (to what exact extent we'll never know due to the 'loophole' in the law which exempts lobbyists from reporting their activities in communities with populations of less than 50,000), those Town Board members went ahead and determined the outcome themselves.  As we've said, the question of community character, for one thing, is surely one that can be interpreted differently by those with differing viewpoints; though it's hard to see how a casino could possibly not have a significant effect on a community with a population of 900.

Back to the Department of Environmental Conservation site, we see just how daunting it is for the public to challenge the determinations of a "lead agency" that is determined to shape SEQRA to its own desires and purposes.  In fact, not even the DEC has a say in the matter! 
6. Since DEC issues the regulations, doesn't it have the authority to at least notify a lead agency that they are not correctly meeting the requirements of SEQR?
No, because the SEQR statute did not provide any such oversight authority, to DEC or to any other entity. If an agency contacts DEC with questions regarding the SEQR process, staff can give them informal advice regarding the SEQR process in general, or informal interpretations related to their review of a particular action. However, DEC cannot intervene in any lead agency's conduct of SEQR, nor stop any agency from conducting its SEQR review, even if the review is not following the correct procedures as set forth in ECL Article 8 or the SEQR regulations.

And as far as the public challenging a SEQRA decision with an Article 78 proceeding?  Good luck with that.
Individuals or groups who can demonstrate that they are sufficiently environmentally harmed by an agency's decision may seek judicial review under Article 78. If the party or parties that bring an Article 78 proceeding against an agency cannot sufficiently demonstrate to the court that they suffered "harm" by the actions of the agency, the lawsuit may be dismissed before the subject of the agency's conduct and decision is even discussed.
It is hard, I would imagine, for anyone to prove "harm" when the project has not yet even broken ground.  It is also explained that the courts "will look to the SEQR record to see if the parties bringing the challenge did participate in the lead agency's proceedings, and are less likely to be sympathetic to the challenge if those parties did not initially raise their concerns within the lead agency's SEQR process."  The Tyre opponents claim that they did not receive adequate notice of the discussion of these specific documents in order to be able to participate - the agendas refer only generally to "SEQRA Review."  But the judge obviously disagreed.

An attorney with experience in Article 78 proceedings writes to say that they are so hard to win because "if there is a rational basis that is not arbitrary and capricious and supported by substantial evidence (all terms of art defined in numerous appellate case law rulings), then the administrative or municipal ruling stands. That's true, even if another decision would have been equally correct."  And while the Article includes amongst the questions that may be raised during these proceedings the matter of "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion," the burden of proof is squarely on the plaintiffs.  I suppose there has to be a point at which a negative declaration simply doesn't pass the laugh test; if a town board says that there's no potential hazard to a lake because the lake doesn't exist, and the lake clearly does exist, then I presume that any sane judge has to throw out their decision.  However, there are no such clear cut determinations at play here, and I would guess that's the case in the East Greenbush and Tuxedo suits as well.  I'm sure that none of those plaintiffs are laughing today.

 - I thought this was rather interesting, in an article about the latest attempt by those trying to build a soccer stadium for a Major League Soccer team (the New York City Football Club).  They have turned their sights toward Aqueduct....though whether as a replacement for a razed racetrack or on adjacent Port Authority land is not quite clear.  Of the area, it says here:
Not only has it already been zoned off for entertainment but, as previously stated, the area around the Resort World Casino is in desperate need of rejuvenation. [Empire of Soccer]
Yeah but.....what about.....I thought that the racino was supposed to.......

Oh, nevermind.


Anonymous said...

The most unbelievable part of all of this is that the town and Wilmorite's entire argument on all issues was that they complied with the 'intent' of the law, and that Tyre is such a tiny, impoverished place, they can't afford to comply with freedom of information laws.
If I comply with the 'intent ' of the law and have my neighbor, who is a car mechanic, inspect my car and write me a posted note that I put in my car window, will the officer writing my ticket agree that complying with the 'intent' of the law is ok? It's ok for me to do so because I am to poor to afford an inspection? Maybe those analogies aren't the best, but an ordinary citizen would have a hard time arguing that complying with the 'intent' of the law was just fine.

Steve in NC said...

Alan, I again want to thank you for what you are doing to expose how this process is being manipulated to serve anything but the public interest.

It is important to remember that while Cuomo may be particularly brazen, he is hardly alone in this kind of thing. It is and has been taking place in every nook and cranny of our society - from warping of Obamacare to protect insurance company profits, to the disappearance of billions in the Iraq war probably to the pockets of private contractors, to mass incarceration for profit.

Lining pockets is the only bipartisan thing remaining, with big private money ruling the supposedly public sector.

Again, this isn't new, but with the dramatic increase in wealth by the already most wealthy, they have that much more leverage over politicians, civil servants, all of us.

As Dylan sang (was it really singing?) "Money doesn't talk, it swears."