Judge Tosses Developer's Suit Against Pine Plains Board

By: Darryl Ganglof f Register Herald   February 22, 2006

PINE PLAINS - The town board was notified at its recent meeting that a lawsuit filed by the developer of Parkview Estates against the planning board had been dismissed.
The lawsuit was dismissed by Acting Supreme Court Justice Thomas Dolan in its entirety on a numbers of grounds.
According to court documents, dated Feb. 3, these grounds: "include lack of ripeness for judicial review, failure to exhaust administrative remedies, failure to state a cause of action and waiver of their right to challenge."
"I'm very pleased with this decision," said town Attorney Warren Replansky at the Feb. 16 meeting after he broke the news to the town board.
Replansky, did note, however, that developer Robert Hausmann, Jr. can still appeal Dolan's decision.
Hausmann filed the Article 78 proceeding against the members of the planning board in an attempt to annul the board's decision to issue a State Environmental Quality Review Act (SEQRA) positive declaration for the project.
The positive declaration, which received a 4-3 vote by the planning board on July 27, 2005, required that Hausmann and his consultants submit a Draft Environmental Impact Statement (DEIS) addressing all the board's environmental concerns about the site.
If a negative declaration had been issued, then the proposed project, which will add 40 homes on 29 acres near the town's recreation area, would have moved into the subdivision process.
The court documents state that Hausmann's attempt to have the positive declaration annulled and vacated must be dismissed as "not being ripe for judicial review."
The documents also note that the lawsuit is "susceptible to dismissal on the basis of the low threshold required for the preparation of an environmental impact statement."
Hausmann further asked in the lawsuit that planning board member Jon DePreter be barred and recused from any further discussion on the development since he is "biased" against the project.
The documents state that this charge was dismissed because the plaintiff never raised the bias issue before the planning or town boards, nor was any referral to the Board of Ethics ever requested.
"There were allegations of impropriety and prejudicial views within the board," said current planning board Chairman Don Bartles, who was a board member during the decision to issue the positive declaration to the project.
"I'm happy to see that the town prevailed," Bartles said, noting that the decision to dismiss the lawsuit reinforced the proceedings of the town.
"I just hope, with this out of the way, we can proceed with a continuation of our review. We're right in the middle of SEQRA," he said.
Bartles said the matter is now in the hands of the Parkview developer, and that it is the responsibility of Hausmann and his consultants to produce a scoping document.
"With the moratorium in place, they can only proceed with SEQRA, so it's in their benefit to proceed," Bartles said.
The moratorium means that a SEQRA review may continue, but only to the point of filing a final EIS. The planning board may not issue its findings on the EIS with the moratorium in place.

©The Register Herald 2006

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