STATE OF NEW YORK SUPREME COURT ULSTER COUNTY In the Matter of the Application of CATSKILL HERITAGE ALLIANCE, INC. cd NOTICE OF PETITION Petitioner, for a Judgment Pursuant to CPLR Article 78 INDEX NO. 16-385 ~against- DATE OF FILING: CROSSROADS VENTURES, LLC, and TOWN OF SHANDAKEN PLANNING BOARD, February 12, 2016 Respondents. PLEASE TAKE NOTICE that, upon the annexed verified petition, an application will be made by the Petitioner at the Ulster County Courthouse, 285 Wall Street, Kingston, New York, at 10:30 a.m. on the 28th day of March, 2016, or at such other time and place as the assigned justice shall determine, for a judgment pursuant to CPLR Article 78 annulling the January 13, 2016 approval by respondent Town of Shandaken Planning Board of the special use permit and site plan review application by respondent Crossroads Ventures, LLC; declaring said approval to be null and void; determining that respondent Town of Shandaken Planning Board may not approve the special use permit and site plan review application by Crossroads Ventures, LLC unless a use variance isfirst obtained for the construction of certain structures, including multifamily dwellings, a conference center, clubhouses, a community center, and an activity center, in the applicable zoning districts; awarding the Petitioner the costs and disbursements of this proceeding; and granting such other and further relief as may be deemed just and proper by the Court. PLEASE TAKE FURTHER NOTICE that pursuant to CPLR § 7804(c), any answering papers must be served at least five (5) days before the return date. Dated: February 11, 2016 CAFFRY & FLOWER Attorneys for Petitioners Claudia K. Braymer, of Counsel 100 Bay Street Glens Falls, New York 12801 518-792-1582 S:\Client.Piles\catshill Heritage Alliance. Tow.3462\Notice..of Petition-wpdSTATE OF NEW YORK SUPREME COURT ULSTER COUNTY ee In the Matter of the Application of CATSKILL HERITAGE ALLIANCE, INC. PETITION Petitioner, for a Judgment Pursuant to INDEX NO. 16-385 CPLR Article 78 -against- DATE OF FILING: CROSSROADS VENTURES, LLC, and February 12, 2016 TOWN OF SHANDAKEN PLANNING BOARD, Respondents. eS Petitioner, Catskill Heritage Alliance, Inc., for its verified petition herein, alleges as follows: SUMMARY OF PROCEEDING 1. This proceeding is brought pursuant to Article 78 of the Civil Practice Law and Rules (“CPLR”) to annul, vacate, and set aside the January 13, 2016 approval by respondent Town of Shandaken Planning Board (hereinafter “Planning Board”) of the special use permit and site plan review application by respondent Crossroads Ventures, LLC (hereinafter “Applicant” or Crossroads”) . 2. This proceeding is also brought to request that the Court determine that the Planning Board may not approve the Applicant’s special use permit and site plan review applicationunless use variances are first obtained for several of the Proposed structures that have been improperly “approved” by the Planning Board in zoning districts where those structures are not permitted by the Town of Shandaken Zoning Code (hereinafter “Zoning Code") 3. The Applicant proposes to construct a development to be known as the “Belleayre Resort at Catskill Park” in the towns of Shandaken, Ulster County, and Middletown, Delaware County, in close proximity to the state-owned and operated Belleayre Mountain Ski Center (hereinafter “the Project”). 4. The Project spans more than 739 acres and multiple tax map lots, and would consist of numerous distinct elements, including, among other things, two hotels, an 18-hole golf course, a golf clubhouse, ski trails, a ski lift, a parking garage, swimming pools, numerous tennis courts, conference centers and community centers, restaurants, shops, offices, and 259 multifamily dwelling units. 5. Specifically, the Project would include: © 11 multiple-family dwelling structures, known as the “Front 9 Village”, in the eastern part of the Project, which is referred to as Wildacres”; © 4 multiple-family dwelling structures, part of the so-called “West Village”, in the main part of Wildacres;® 1 conference center known as the “Leach Farm Conference Center”; and © 3 community centers, including the so-called “Clubhouse” in the Front 9 Village, one known as the “Marlowe Mansion Community Center”, one known as the “Wilderness Activity Center”. 6. These proposed uses were all approved for areas in the Town of Shandaken where the Zoning Code prohibits such uses. 7, The grounds upon which the Planning Board's approval of Applicant's special use permit and site plan application should be annulled are that the Applicant did not apply for, and did not receive, use variances, which are required as a matter of law, to construct the prohibited uses in the applicable zoning districts (see First and Second Causes of Action, infra); 8. Because the Zoning Law prohibits those uses in the applicable zoning districts, the Court should declare that the Planning Board can not approve the special use permit and site plan review application for the Project unless and until the necessary use variances are applied for by the Applicant, and approved by the Town of Shandaken Zoning Board of Appeals. See First and Second Causes of Action, infra.THE PARTIES 9. Petitioner Catskill Heritage Alliance, Inc, (“CHA”) is a grassroots New York not-for-profit corporation dedicated to Preserving the harmony between people and wilderness in the central Catskills. 10. CHA actively participated during the Planning Board’s review of the Project application. Notably, CHA also actively participated during the Department of Environmental Conservation’s (“DEC”) environmental review of the Project, and was granted full party status in DEC’s adjudicatory permit hearing proceeding for the Project. 1. One or more of CHA’s members live in close proximity to the site of the Project. The Project causes them environmental harm that is different from the public at large. 12. Beverly Rainone is a member of CHA and lives on Galli Curci Road, across the street from the Project. 13, Benjamin Korman and Idith Korman are also members of CHA, who reside at the Galli-Curci Estate, located on Galli Curci Road, across the street from the Project. 14. Other CHA members who live near the Project include: Ruth Dunleavey, Matthew Frisch, Scott Gould, Susanna Margolis, Denis Orloff, Amy Wax-Orloff, and Lee Parker 15. CHA’s members and their properties will be adversely affected by the traffic, change in neighborhood character, and other adverse environmental impacts of the Project.16. Upon information and belief, respondent Planning Board is a duly constituted board of the Town of Shandaken, a municipality of the State of New York, located in Ulster County. The Planning Board granted the approval that is at issue herein. 17. The Applicant, respondent Crossroads Ventures, LLC, is a New York limited liability company, with its principal office located in Ulster County. It is the applicant for the special use permit and site plan review approval which are at issue herein. VENUE, 18. Venue of this proceeding properly lies in Ulster County because the Town of Shandaken is located in said county, and the site of the Project, which is the subject of this proceeding, is located mostly therein, In addition, the Applicant has its principal office in Ulster County. BACKGROUND The Project Site 19. According to the application materials and the Planning Board’s resolution approving the Project, the Project is proposed to be built on a site of 333.56 acres in the Town of Shandaken located south of New York State Route 28, and west and north of County Route 49A, also known as Galli Curci Road (hereinafter the portion of the Project located in the Town of Shandaken will bereferred to as the “Site”).’ Part of the Site is also south and east of Galli Curcui Road, as the road winds and turns. Fleischmanns Heights Road is located to the west of the Site. 20. According to the application materials, the Site currently consists of 11 separate lots. 21. The Site is primarily undeveloped and is mostly forested, with some open fields, ponds, and wetlands. The Project Applications 22. In 2013, the Applicant filed with the Planning Board an application for a special use permit and a site plan review permit for the Project. 23, The Planning Board approved the permit applications at its meeting on or about January 13, 2016. 24. Upon information and belief, that approval was filed with the Town Clerk on January 14, 2016. ‘ The Final Environmental Impact Statement for the Project states that the lands in the Town of Shandaken includes approximately 225 acres (p. 202) or 328.23 acres (p. 204). The Planning Board's findings statement (p. 2, section 4) states that the acreage is 331.31 acres.THE PROJECT REQUIRES USE VARIANCES 25. The proposed Project includes: © 11 multiple-family dwelling structures in Front 9 Village, located in the R1.5 zoning district; e@ 4 multiple-family dwelling structures in West Village, located in the R3 zoning district; © 1 conference center (i.e., Leach Farm Conference Center), located in the R3 zoning district; © 1 community center in Front 9 Village (i.e., the so- called “Clubhouse”, with a snack bar, health club, game rooms and offices), located in the R1.5 zoning district; © 1 community center in Wildacres (i.e., Marlowe Mansion Community Center, with social club space, game rooms and offices), located in the R3 zoning district; and © 1 community center in Wildacres (i.e., Wilderness Activity Center, with health club features such as a weight room, locker rooms, and a steam room, as well as commercial recreation features, such as indoor and outdoor rock climbing walls), located in the R3 zoning district. 26, The Zoning Code specifies the types of uses that are allowed in each of the Town’s zoning districts. A use variance is needed if a proposed use is not on the list of uses allowed in a particular zoning district. Zoning Code § 116-10.Multifamily Dwellings 27. Multifamily dwellings are defined as “detached, semidetached or attached building, or portion thereof, containing three or more dwelling units”. Zoning Code § 116-4. The 11 structures in the Front 9 Village and the four structures in the West Village contain multifamily dwellings because they each have buildings containing approximately eight or nine dwelling units. 28. Multifamily dwellings only are permitted to be constructed in the R1.5 zoning district if such dwellings are built via “conversion” of existing structures. Zoning Code § 116-10, District Schedule of Use Regulations (hereinafter “Use Table”); and Zoning Code § 116-40(A) (1). 29, The Front 9 Village structures would be new buildings and would not result from the “conversion” of existing structures. Zoning Code § 116-40(A) (1) 30. Thus, in order to construct the multifamily dwellings in Front 9 Village, which is located in the R1.5 zoning district a use variance is required. Zoning Code § 116-10(B). 31. Multifamily dwellings are not permitted to be built in the R3 zoning district. Zoning Code § 116-10, Use Table 32. Thus, in order to construct the multifamily dwellings in West Village, which is located in the R3 zoning district, a use variance is required. Zoning Code § 116-10(B).33. The Applicant has not applied for a use variance for the multifamily dwelling units that it has proposed to build in the R1.5 and R3 zoning districts. Conference & Community Centers 34. Conference centers and community centers are not on the list of permitted uses in the R1.5 and R3 zoning districts Zoning Code § 116-10, Use Table. Therefore, such uses are prohibited. Zoning Code § 116-10(B) . 35. Notably, uses similar to a conference center, “General or professional office” and “retail business or service”, are prohibited from the R3 zoning district where the proposed conference center at issue would be located. zoning Code § 116- 10, Use Table. 36. Additionally, uses similar to the uses involved with the proposed community centers (see 925 above), such as “health club”, and “commercial recreation and amusement facilities”, are explicitly prohibited from the R1.5 and R3 zoning districts. Zoning Code § 116-10, Use Table. 37. Accordingly, in order to construct a conference center in the R3 zoning district, and community centers in the R1.5 and R3 zoning districts, use variances are required. Zoning Code § 116-10(B) .38. The Applicant has not applied for a use variance for the conference center and community centers that it has proposed to build in the R1.5 and R3 zoning districts. The Project's Prohibited Uses Are Not Mere Accessory Uses 39. The Applicant applied for, and was granted, a single special use permit for a “hotel or motel or lodge development” under Zoning Code $ 116-40(0). See Applicant's October 28, 2013 letter to the Planning Board (p, 3), Applicant’s Application Addendum (p. 4), Planning Board’s Notice of Public Hearing dated December 30, 2014, and Planning Board’s resolution (p. 3-4) .2 40. A “hotel” is defined as a “multiple dwelling or any part thereof which contains living and sleeping accommodations for transient occupancy, has a common exterior entrance or entrances and which may contain one or more dining rooms”, Zoning Code § 116-4. 41. A “hotel” may also include “uses integral to the hotel” that are “either clearly accessory to the hotel . . . as defined within 116-4, or be permitted uses or special permit uses within * According to those documents cited above, even though the Project is called the Belleayre Resort at Catskill Park, the Project has been reviewed by the Planning Board as a “hotel development”, not a “resort”. There is no definition of a “vacation resort” in the Zoning Code, and a “camp”, which is similar to a “resort” according to the Zoning Code, specifically excludes a “hotel”. Zoning Code § 116-4. Moreover, neither the Applicant nor the Planning Board applied the criteria in Zoning Code § 116-40(E) that apply to “vacation colonies”. 10the zoning district in which the hotel” is proposed. Zoning Code § 116-40 (0) (4). 42. Therefore, to be allowed as part of the Project as integral to the hotel development, the Project’s elements must be “customarily incidental and subordinate to that of the principal building and . . . attached thereto or . . . located on the same lot or premises”, and cannot be “for the purpose of human habitation”. Zoning Code § 116-4 (definition of “accessory”). 43. Accordingly, the multifamily dwellings at issue herein can not be “accessory” to the hotel development because they are “for the purpose of human habitation”. Zoning Code § 116-4 (definition of “accessory”). 44, Accordingly, the multifamily dwellings must themselves “be permitted uses or special permit uses within the zoning district in which the hotel” is proposed in order to be permitted as part of the Project. Zoning Code $ 116-40(0) (4) 45. Since they are not permitted uses, as shown above, the multifamily dwellings are prohibited. 46. In addition, the stand-alone conference center and community centers at issue herein are not “clearly accessory to the hotel”. Zoning Code § 116-40(0) (4). They are separate detached buildings that are each “designed” for a particular “primary purpose” such that they are each a “principal” use, not 1an “accessory” use. Zoning Code § 116-4 (definition of “principal” use). 47. Moreover, since the Project consists of 11 different tax map lots, the Project and all of the uses at issue herein are not “located on the same lot”, Therefore, they cannot all be “accessory” to the hotel development. Zoning Code § 116-4 (definition of “accessory”). ‘There was a proposal by the Applicant to consolidate the lots, but the Planning Board’s resolution approving the Project did not approve the consolidation or condition approval of the Project on later consolidation of the lots. Therefore, the Planning Board did not, and cannot now after-the-fact, utilize lot consolidation as a basis for its approval of the conference center and community centers as being “accessory” to the rest of the Project. AS AND FOR A FIRST SEPARATE AND DISTINCT CAUSE OF ACTION AGAINST RESPONDENT PLANNING BOARD 48. Each and every allegation set forth above is repeated and realleged as if more fully set forth herein. 49. The Planning Board may not approve a special use permit application or a site plan review application unless it complies with all of the requirements of the Zoning Code. Zoning Code § 116-10, Zoning Code § 116-39. 1250. As set forth above, the Zoning Code prohibits multifamily dwellings in the R1.5 and R3 zoning districts. Zoning Code § 116-10, Use Table; and Zoning Code § 40(A)(1). 51. However, the Applicant proposes to construct 11 multiple-family dwelling structures in Front 9 Village, located in the R1.5 zoning district, and four multiple-family dwelling structures in West Village, located in the R3 zoning district 52, The requisite use variances have not been applied for or approved by the Town of Shandaken Zoning Board of Appeals. 53, Nevertheless, the Planning Board approved the special use permit and site plan review application on or about February 13, 2016. 54, Therefore, the Planning Board’s approval of the special use permit and site plan for the Project was arbitrary and capricious, an abuse of discretion, in violation of lawful procedure, and affected by error of law, and should be annulled. AS AND FOR A SECOND SEPARATE AND DISTINCT CAUSE OF ACTION AGAINST RESPONDENT PLANNING BOARD 55. Each and every allegation set forth above is repeated and realleged as if more fully set forth herein. 56. The Planning Board may not approve a special use permit application or a site plan review application unless it complies 13with all of the requirements of the Zoning Code. Zoning Code § 116-10, Zoning Code § 116-39 57. As set forth above, the Zoning Code prohibits conference centers and community centers in the R1.5 and R3 zoning districts. Zoning Code § 116-10, Use Table. 58. However, the Applicant proposes to construct a conference center in the R3 zoning district, a community center in the R1.5 zoning district, and two more community centers in the R3 zoning districts. 59. The requisite use variances have not been applied for or approved by the Town of Shandaken Zoning Board of Appeals. 60. Nevertheless, the Planning Board approved the special use permit and site plan review application on or about February 13, 2016. 61. Therefore, the Planning Board's approval of the special use permit and site plan for the Project was arbitrary and capricious, an abuse of discretion, in violation of lawful procedure, and affected by error of law, and should be annulled. 14WHEREFORE, Petitioner requests that the Court grant judgment pursuant to CPLR Article 78: A, Annulling the January 13, 2016 approval by respondent Town of Shandaken Planning Board of the special use permit and site plan review application by respondent Crossroads Ventures, LLC; B. Declaring said approval to be null and void; Cc. Determining that respondent Town of Shandaken Planning Board may not approve the special use permit and site plan review application by Crossroads Ventures, LLC unless a use variance is first obtained for the construction of certain structures, including multifamily dwellings, a conference center, clubhouses, a community center, and an activity center, in the applicable zoning districts; D. Awarding the Petitioner the costs and disbursements of this proceeding; and B, Granting such other and further relief as may be deemed just and proper by the Court. Dated: February 11, 2016 CAFFRY & FLOWER Attorneys for Petitioners John W. Caffry, of Counsel Claudia K. Braymer, of Counsel 100 Bay Street Glens Falls, New York 12801 518-792-1582STATE OF NEW YORK) )ss. COUNTY OF WARREN ) I, the undersigned, am an attorney admitted to practice in the courts of New York State. I am an attorney for the petitioner herein. I have read the foregoing petition and know the contents thereof and the same are true to my knowledge, except those matters therein stated to be alleged on information and belief, and to those matters I believe them to be true. My belief, as to those matters therein not stated upon knowledge is based upon my review of documents maintained at my office, correspondence and other writings furnished to me by the petitioner and interviews with petitioner. The reason I make this verification instead of the petitioner, is that the petitioner's principal place of business is outside of the county wherein T maintain an office for the practice of law. Sworn to before me this Vth day of, February, 2016. J.STARK state of New York von Sasa jn Washingion Cour ease estar aL S:\client.Piles\catskill Heritage Alliance. Town. 3463\Petition.xpd