Affidavit, Amicus Brief, and Memoradum of Law

AFFIDAVIT

1. I am employed by Cornell University in Ithaca, New York, where I am a tenured Associate Professor and have been the Director of the Graduate Program in Historic Preservation Planning since 1988. My degrees include a Bachelor of Architecture (University of Tennessee, Knoxville, 1973); M.S. Historic Preservation, (Columbia University, 1976); and Ph.D. in the History of Architecture and Urban Development (Cornell University, 1983); and I have given expert testimony in over two dozen cases or projects involving historic preservation and community planning issues.
   
   
2. I make this affidavit in support of the Petition herein and the temporary relief requested by the proposed Order to Show Cause.
   
   
3. I am familiar both personally and professionally with the Village of Aurora in Cayuga County (hereinafter, "Village"), with the historic Aurora Inn, both its impressive exterior and the conditions of its interior, and with the Vanderipe Building and the other structures that comprise the Aurora Village-Wells College Historic District (hereinafter, "District"), which is listed in the National Register of Historic Places (hereinafter, "National Register").
   
   
4. I have also reviewed a copy of the nomination that placed the District in the National Register and I concur with the statements and findings of that official U.S. Department of the Interior document, with respect to the District's history, its architecture, and the natural and man-made features that contribute to its historic significance.
   
   
5. Both the Aurora Inn and the Vanderipe Building (referred to as the "Aurora IGA" in the nomination) are specifically cited in the nomination as contributing to the significance of the District. The Aurora Inn and Vanderipe Building are coded "green" in the nomination, which means that each is a "vernacular building which retains an historic appearance," each "retains architectural detail," and each "has architectural significance as part of a grouping of similar period buildings" and "has historical value as a contributor to the general area development." The information above indicates that the New York State Historic Preservation Office in Albany (hereinafter "SHPO"), which is housed within the New York State Office of Parks, Recreation and Historic Preservation (hereinafter, "OPRHP") and the Keeper of the [National] Register at the U.S. Department of the Interior in Washington, D.C., have determined that the Aurora Inn and Vanderipe Buildings are equally significant, both historically and architecturally, and that each contributes to the significance of the Aurora Village-Wells College Historic District.
   
   
6. The nomination further elaborates on the Aurora Inn by stating, "[Edwin] Morgan constructed the Aurora Inn and the Aurora Office Building, two of the most architecturally and historically significant commercial structures in the Village." The nomination also states, "The Aurora Inn and the less elaborate Aurora Office Building, both built at the same time for the same man, are large brick structures which manifest the central corridor [emphasis added], rectangular block and narrow cornice of the Federal Style."
   
   
7. Based on my travels across New York State, my discussions with staff at SHPO and the Preservation League of New York State, and my knowledge of the National Register of Historic Places, it is my professional opinion that the Aurora Village-Wells College Historic District is one of the most intact and evocative historic districts in New York State. Its degree of integrity is all the more remarkable since it is not located far from population centers, as is the Village of Essex in Essex County; and it is not accessible only by secondary roads, as are the hamlets of Rensselaerville in Albany County or Old Chatham in Columbia County. The Village is less than 20 miles from the City of Auburn and is located on NY 90, a major north-south route on Cayuga Lake.
   
   
8. It is also unusual to have nearly an entire Village and an adjoining college campus listed in the National Register as a single district, and noteworthy in light of the fact that this occurred in the early days of the National Register program, when large-scale districts were rarely listed. The Inn is one of the most impressive and memorable buildings in the District, and its interior and exterior are both cited in the nomination.
   
   
9. Because the Vanderipe Building is a significant historic structure listed in the National Register of Historic Places, it is my professional opinion that its demolition, as proposed by Wells College and/or the Aurora Foundation, will have a significant and severely adverse impact on the District, regardless of the design of the new construction that replaces it. This opinion is shared by the SHPO/OPRHP. (See Exhibits ____, appended to the accompanying Petition.)
   
   
10. Because the Aurora Inn is a significant historic structure listed in the National Register of Historic Places, and because a key and character-defining feature of its interior plan, namely its central corridor, a feature found at each of its floors, is specifically cited in the National Register nomination as contributing to its significance, it is also my professional opinion that the complete gutting of the Aurora Inn, as proposed by Wells College and/or the Aurora Foundation, will have a significant and severely adverse impact on the District. This opinion, too, is shared by SHPO/OPRHP. (See Ex. ____, appended to Petition.)
    
    
11. Based on my review of the resolutions of the Village of Aurora Community Preservation Panel ("CPP") and of the Planning Board (which relied heavily on the findings of the CPP), it is my professional opinion that the historic and architectural significance of the Aurora Inn and Vanderipe Buildings is either not known to, or not acknowledged by, the Village of Aurora, notably the Chairs of the CPP and the Planning Board, and that for these reasons the buildings have not received the protection and consideration they should be afforded under the New York State Environmental Quality Review Act (the "SEQRA").
    
    
12. This lack of consideration cannot be attributed to the Chairs' ignorance of their responsibilities with respect to historic resources, since each received or was copied on extensive counsel from SHPO/OPRHP and the New York State Department of Environmental Conservation ("DEC"), as set forth in detail in the Petition.
    
    
13. The CPP motion approving the project states that the CPP considered "the pertinent historical significance of the structures, which we have determined that although they are old and we are used to them, are not particularly rare or unique or wonderful in their own right, as defined by the phrase 'Historical Significance' [sic]." The CPP's assumption and conclusion that the Aurora Inn and Vanderipe Buildings are not historic ignores the extensive counsel of the SHPO/OPRHP and DEC, the fact that the structures are listed in the National Register of Historic Places, and the fact that the regulations implementing SEQRA (6 NYCRR Part 617) clearly state that properties listed in the National Register are worthy of special consideration. Section 617.4(b)(9) requires that actions at those properties that are not designed to preserve them must be considered Type I actions, which are more likely to require the preparation of an Environmental Impact Statement.
    
    
14. Upon information and belief, the CPP recently reaffirmed these previous errors by "reaccepting" its earlier findings, on September 4, 2001.
    
    
15. The Planning Board's resolution of August 16, 2001, states that the Board reached its decision in part because the Aurora Inn and Vanderipe Building are not listed individually in the National Register, because the Vanderipe Building is "less historically significant" than the Aurora Inn, and because the Inn's interior is not cited in the National Register nomination. The first two statements ignore extensive guidance provided by the SHPO/OPRHP and the third is not accurate. The Planning Board also failed to consider the impact of parking issues and the proposed gutting of the Inn's interior, despite the counsel of DEC about the appropriate and full scope of review for this project under SEQRA.
    
    
16. In my professional opinion, the architecturally rare Aurora Inn and the
    historically valuable Vanderipe Building are at grave and immediate risk of further, irreparable damage, once final permits are issued by the Village of Aurora, based on the approvals made by the CPP and the Planning Board.
    
    
17. I refer to "further damage" because, upon information and belief, interior portions of the Inn's upper floors have already been modified to an unknown extent, without proper authorization, as part of this project. That work occurred before the SEQRA review was complete, and ultimately a Stop Work Order was issued by Edward Brockner, Code Enforcement official for the Village of Aurora, on July 9, 2001.
    
    
18. This is not the first time Wells College or its agents have adversely affected significant historic properties under its stewardship, or the first time that Wells College has ignored applicable local zoning and review statutes. In 1992, the College initiated the destruction of the 1817 "Stone Mill," a property listed in the National Register of Historic Places, without the required permits or approval. The Stone Mill remains partially destroyed to this day.
    
    
19. That act, which is commonly known to residents of the Village and the region, and to the agencies involved at the time, suggests that Wells College does not always respect the important historic properties in its ownership and that the college does not always carry out its projects in conformance with local zoning and permitting regulations. This inability or refusal to follow local regulations in the past, as well as the college's partial gutting of the Aurora Inn, before the required reviews were complete, and the complete disregard for architectural significance shown by the Planning Board and CPP, lead me to conclude that the architectural integrity and historic significance of the Aurora Inn and the Vanderipe Building may be jeopardized or permanently impaired as a result of inappropriate, unauthorized or unapproved work undertaken by Wells College or its agents.
    
    

AMICUS BRIEF

• "The present condition of the structures in question through experts in the field of renovation, architects, personal inspection and the opinions of the professional whose job it has been to try to maintain these buildings for many years. At each of these turns, we have found the buildings to have many long term and significant structural problems, which are serious, and in certain cases, dangerous.
  
• "The pertinent historical significance of the structures, which we have determined that although they are old and we are used to them, are not particularly rare or unique or wonderful in their own right, as defined by the phrase "Historical Significance".
  
• "The relationship of the affected parcel to its surrounding parcels. Regarding this, we feel that the proposed plans are well thought out and will in fact enhance various and numerous aspects of the surrounding parcels.
  
• "Economic viability of use alternate to demolition. We have seen the results of the Bohan Study and the affects of increasing costs and increasing difficulty of doing business in a small village, which show that the Inn and Market cannot continue as they are, partly as evidenced by years of losing money and the present closed condition of the Inn, and the results of the study pertaining to the scale of similar businesses in the surrounding area.
  
• "The future plans for the property we have found also to be sound and well thought out, and certainly in keeping with the present use.
  
• "Public comment. As I said before, we have held numerous public meetings in order to garner public comment as well as soliciting the same in writing, and have used these comments to help form our opinion.
  
• "We have also considered many other "Local Factors" including parking problems, future employment opportunities, zoning issues, and possible alternatives to the proposed plans. (R. 96)."
  

1. E. The CPP's Consideration Of Local Factors Was Ultra Vires
   
   
The Community Preservation Ordinance does not authorize the CPP to regulate matters ordinarily considered in the zoning process such as "the height and bulk of buildings . . . the area of yards, courts or other open spaces . . . the density of population . . . or to restrict the locations of trades and industries as encompassed in this Zoning Law." (R. 72). See also Zartman v. Reisem , 54 A.D.2d 237 (4th Dept. 1977)(noting that purpose of preservation board is to determine project's consistency with preservation ordinance, not to protect public health, safety and welfare generally, which is the function of the zoning ordinance). Notwithstanding this strict limitation on the scope of its authority, the CPP considered and relied upon many "Local Factors" in reaching its decision to issue the Certificate of Appropriateness. Among these "Local Factors" were "parking problems, future employment opportunities, zoning issues, and possible alternatives to the proposed plans." (R. 96). However, the local law makes clear that the Planning Board, not the CPP, has jurisdiction to consider parking problems and zoning issues. (R. 68)(setting forth considerations pertinent to site plan approvals issued by the Planning Board). The CPP's findings go far beyond mere concern "with preserving the appearance of existing structures end uses and insuring that new improvements are consistent with the special values and character of the district." Zartman, supra, at 240.

In sum, the CPP's consideration of these "Local Factors" was ultra vires and contrary to lawful procedure. As a result, its decision to issue a Certificate of Appropriateness was arbitrary and capricious.

MEMORANDUM OF LAW

The Village Of Aurora Community Preservation Panel Is An Agency Whose Decisions Are Subject To SEQRA

The decision whether or not to allow the alteration and destruction of buildings listed on the National Register of Historic Places, thus threatening the integrity of a nationally recognized historic district, may not be considered "ministerial." As evidenced by the Respondents' own affidavits, the Community Preservation Panel ("CPP") enjoys broad discretion to require project changes as a condition of granting Certificates of Appropriateness authorizing such alteration or demolition. See Affidavit of Avery Ayers, para. "12"; Affidavit of Nancy Gil, para. "4". Moreover, in view of SEQRA's broad definition of the "environment" (see, e.g., 6 N.Y.C.R.R. 617.2[1] ), and requirement that all reasonable alternatives be considered (see, e.g., 6 N.Y.C.R.R. 617.9[b][5][v] ), the CPP's consideration of Respondents' application would be informed by the preparation of an environmental impact statement ("EIS").
The SEQRA regulations define a "ministerial act," as "an action performed upon a given state of facts in a prescribed manner imposed by law without the exercise of any judgment or discretion as to the propriety of the act, such as the granting of a hunting or fishing license." See 6 N.Y.C.R.R. 617.2(w). Including among SEQRA's "Type II" list of actions that do not require review are "official acts of a ministerial nature involving no exercise of discretion, including building permits and historic preservation permits where issuance is predicated solely on the applicant's compliance or non-compliance with the relevant local building or preservation code(s)." See 6 N.Y.C.R.R. 617.5(c)(19). Neither of these provisions applies to the matter before the Court. ...

The CPP has discretion to alter the proposal to meet the Village Code.

The Village of Aurora Community Preservation Ordinance and its implementing regulations are set forth as Exhibits "G" and "BB" to the Verified Petition (the "Preservation Ordinance"). The enabling act upon which the Preservation Ordinance is based contemplates the imposition of "appropriate and reasonable controls of use or appearance or both" See Preservation Ordinance 901.

The Preservation Ordinance requires that a Certificate of Appropriateness be obtained from the CPP for two classes of activities. First, "changes in exterior architectural features in the Village" require a Certificate, "notwithstanding any inconsistent ordinance, Local law, code, rule or regulation ." See Preservation Ordinance 906(a).

When considering an application for alteration of an "exterior architectural feature," the CPP must exercise its discretion to determine, within twenty (20) days of receiving the application:

whether the proposed construction, reconstruction or alteration of the exterior architectural feature involved will be appropriate to the preservation of the Village for the purposes of the Article; and

whether, notwithstanding that the proposed construction, etc. may be inappropriate owing to conditions affecting the structure involved but not affecting the Village generally, failure to issue a Certificate of Appropriateness will involve a substantial hardship to the applicant and whether such a certificate may be issued without substantial deviation from the intent and purposes of this Article;

in addition to any other pertinent factors, the historical and architectural value and significance, architectural style, general design, arrangement and appearance of the exterior architectural feature involved and the relationship thereof to the exterior architectural features of other structures in the immediate neighborhood.

The Preservation Ordinance contemplates a two-tiered inquiry for exterior alterations: if a project is deemed by the CPP to "be appropriate to the preservation of the Village," then a Certificate of Appropriateness will issue, without more. See Preservation Ordinance 907(a)(1). However, where the proposed construction "may be inappropriate" owing to the enumerated conditions, a Certificate of Appropriateness still may issue upon a finding by the CPP that "failure to issue a Certificate of Appropriateness will involve a substantial hardship." See Preservation Ordinance 907(a)(2). Therefore, the "hardship" test is applied in the context of CPP's initial review of actions deemed "inappropriate," and not, as suggested by Respondents' counsel (see Affidavit of Andrew S. Fusco, para "6"), only relevant after the CPP denies the application.

Section 904(d) of the Preservation Ordinance provides a separate set of standards to be applied to demolition applications. There, and in the regulations at Section VI, the CPP's decision to issue a Certificate of Appropriateness authorizing actual demolition "shall be based on:"

Pertinent historical significance;
Present condition of the structure;
Economic viability of use alternate to demolition;
Public Comment;
Future plans for the property;
Relationship of affected parcel to surrounding parcels; and
Other local factors.

These factors are far less certain that those applied by a building inspector to determine whether a proposed use is consistent with the applicable Zoning law, or by a cashier issuing a fishing license, neither or whom may apply any discretion to the application.
The "economic viability" aspect of this test sounds much like the "unnecessary hardship" test for issuing Use Variances, which is a discretionary act. See Village Law 7-712-b; Kingsley v. Bennett, 185 A.D.2d 814 (2d Dept. 1992)(requirement that owner cannot realize a reasonable return on investment must be shown by "dollars and cents evidence."). The CPP's finding on this point was that:

We have seen the results of the Bohan study and the affects of increasing costs and increasing difficulty of doing business in a small village, which show that the Inn and Market cannot continue as they are, partly as evidenced by years of losing money and the present closed condition of the Inn, and the results of the study pertaining to the scale of similar business in the surrounding area.

See Verified Petition, Exhibit "L".

Further, the scope and application of the undefined "Local Factors" element is solely within the CPP's discretion. In their findings on this issue, the CPP noted, "we have also considered many other "Local Factors" including parking problems, future employment opportunities, zoning issues, and possible alternatives to the proposed plans (emphasis supplied)." See Verified Petition, Exhibit "L".

The CPP's discretion to adjust the project as necessary as a prerequisite to approval may be found in the Affidavit of Avery Ayers, submitted in opposition to the Verified Petition. There, Mr. Ayers states " the CPP required the applicant to make certain minor changes to the project, including, but not limited to, changing the glass walkway between the two buildings." See Ayers Affidavit, para. "9"; Affidavit of Nancy Gil, para. "4" (noting CPP induced changes).

In light of these admissions, it is clear that, as distinguished from the cases cited by Respondents, the CPP "is required or authorized by law to vary or request modifications in the qualifying criteria for the permit." Filmways Communications of Syracuse, Inc., supra, 106 A.D.2d 185 (4th Dept.), aff'd 65 N.Y.2d 878 (1985). Applying the test set forth by the Fourth Department, therefore, SEQRA applies.

2 . An EIS would inform the CPP's consideration of the applications.

In considering the Court of Appeals statement in Village of Atlantic Beach, supra, the Court must determine "whether the information contained in an EIS may form the basis for a decision of whether or not to undertake or approve such actions." Here, information pertaining to alternate designs and the "no action alternative," may have led the CPP to deny or modify the application.

SEQRA defines the terms "environment" broadly to include:
the physical conditions which will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance , existing patters of population concentration, distribution or growth, and existing community or neighborhood character . (emphasis supplied). ECL 8-0105(6).

Moreover, the SEQRA regulations list "the impairment of the character or quality of important historic, archaeological, architectural, or aesthetic resources" among the criteria for determining the significance of proposed actions. 6 N.Y.C.R.R. 617.7(c)(1)(v). Further, an otherwise unlisted action can become a Type I action (and therefore more likely to require an EIS) if it:

occur(s) wholly or partially within, or substantially contiguous to, any historic building, structure, facility, site or district or prehistoric site that is listed on the National Register of Historic Places, or that has been proposed by the New York State Board for Historic Preservation for a recommendation to the State Historic Preservation Officer for nomination or inclusion in said National Register, or that is listed on the State Register of Historic Places. 6 N.Y.C.R.R. 617.4(b)(9).

Clearly, therefore, historic resources form part of the "environment" that SEQRA was drafted to protect. An EIS provides a means to consider a particular project's impact on historic resources by facilitating the "weighing of social, economic and environmental factors early in the planning process. See 6 N.Y.C.R.R. 617.2(n).

In its consideration of the "Local Factors," the CPP apparently considered "parking problems, future employment opportunities and possible alternatives to the proposed plans." There is no question that each of those "environmental" factors bears directly on issues that would be addressed in an EIS. Moreover, the EIS process provides for enhanced public participation (6 N.Y.C.R.R. 617.9[a] ), the review of alternatives to the proposed action (6 N.Y.C.R.R. 617.9[b][5][v] ), and the relationship to surrounding parcels (6 N.Y.C.R.R. 617.9[5][iii] ). All of these factors were applied by the CPP to the application.
Therefore, the CPP's decision to issue a Certificate of Appropriateness is more akin to the discretionary decisions of a Planning Board, then to the ministerial decision associated with the issuance of a fishing license, and is subject to SEQRA's procedures.

C. The CPP Failed To Follow SEQRA's Procedures

Having established SEQRA's applicability to Respondents' submissions to the CPP, it is clear that SEQRA's procedures were violated.

The SEQRA process is undertaken by the "lead agency." See 6 N.Y.C.R.R. 617.6(b). The SEQRA regulations define "lead agency" as the "agency principally responsible for undertaking, funding or approving an action, and therefore responsible for determining whether an environmental impact statement is required in connection with the action ." 6 N.Y.C.R.R. 617.2(u) . Thus, the lead agency is the "ultimate decisionmaker on matters of environmental significance." Environmental Task Force of the Niagara Frontier v. Love Canal Revitalization Agency , 179 A.D.2d 261, 268 (4th Dept. 1992), appeal denied , 80 N.Y.2d 758 (1992). In order to require that an EIS be prepared for an action, the lead agency must find only that the action may include the potential for at least one significant adverse environmental impact (emphasis added). 6 N.Y.C.R.R. 617.7(a)(1). Here, the June 5, 2001 CPP decision was rendered prior to the designation of a "lead agency." See 6 N.Y.C.R.R. 617.6(b).

The CPP's "findings" are without support in, and are contradicted by, the administrative record before the Court. See Verified Petition , Exhibit "L". Staff of the New York State Office of Parks, Recreation and Historic Preservation ("OPRHP"), contacted the Chair of the Village Planning Board on no less than six (6) occasions, and vigorously expressed disagreement with the CPP's findings. See Verified Petition , Exhibits "Q" "V". As noted by Mr. Lord, the question of whether or not OPRHP is "interested" or "involved" has no bearing upon whether the Village took a "hard look" at the impact on historic resources. See Verified Petition , Exhibit "Q".

Moreover, the SHPA defines "Historic and/or cultural place or property" as "any building, structure, district, area, site or object .that is of significance in the history, architecture..or culture of the state, its communities, or the nation." See SHPA 14.03(5). This definition makes clear that which Mr. Lord attempted to inform the Village: there are no distinctions to be made between buildings that contribute to an historic district designation.

The consultation requirements of the SHPA are triggered whenever a state agency funds or approves a project. See SHPA 14.09 . In this matter, Exhibit "I" to the Verified Petition is Part II of Respondents' Environmental Assessment Form. There Respondent admits to the need to obtain a variance from the New York State Uniform Code, as well as a liquor license. Both of these acts require state action. Therefore, the Aurora Foundation proposal should be considered subject to the SHPA's consultation requirement.

D. The Planning Board Failed To Follow SEQRA

To assist the lead agency in making its determination of significance, the SEQRA regulations classify actions as either "Type I" (6 N.Y.C.R.R. 617.4 ), "Type II" (6 N.Y.C.R.R. 617.5 ), or "Unlisted" (6 N.Y.C.R.R. 617.2[ak]). According to the regulations, "[T]he purpose of the list of Type I actions is to identify, for agencies, project sponsors and the public, those actions and projects that are more likely to require the preparation of an EIS than Unlisted actions. All agencies are subject to this Type I list (emphasis added)." 6 N.Y.C.R.R. 617.4(a). Type I actions carry with them "the presumption that [the action] is likely to have a significant adverse impact on the environment and may require an EIS ." 6 N.Y.C.R.R. 617.4(a)(1). Moreover, it is well-settled that where a Type I action is involved, the threshold for requiring an EIS is "relatively low: it need only be demonstrated that the action may have a significant effect on the environment." See Chinese Staff and Workers Ass'n. v. City of New York, et al., 68 N.Y.2d 359, 365-66 (1986)(citations omitted); Matter of Farrington Close Condominium Board of Managers v. Incorporated Village of Southampton, et al., 205 A.D.2d 623, 624 (2nd Dept. 1994)(" because the operative word triggering the requirement of an EIS is 'may', there is a relatively low threshold for impact statements) (citations omitted).
Among the criteria for determining significance that are listed in 617.7(c) is "the impairment of the character or quality of important historical, archaeological, architectural, or aesthetic resources of existing community or neighborhood character." 6 N.Y.C.R.R. 617.7(c)(v) . Also among the criteria is "the encouraging or attracting of a large number of people to a place or places for more than a few days, compared to the number of people who would come to such place absent the action." 6 N.Y.C.R.R. 617.7(c)(ix). Finally, the list of criteria includes "a substantial change in the use, or intensity of use, of land including, agricultural, open space or recreational resources, or in its capacity to support existing uses." 6 N.Y.C.R.R. 617.7(c)(viii) . The Respondents improperly ignored the applicability of these criteria to the Project when they concluded that the Project did not have the potential to cause at least one significant adverse environmental impact.

Buildings and structures protected by historic preservation laws such as those at issue in this case are likely candidates for EISs since destruction or substantial alteration of such structures will certainly have a significant environmental impact. See 6 N.Y.C.R.R. 617.2 (l) (defining "environment" to include, inter alia , resources of archaeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth, and existing community character.) Thus, in many cases, courts have overturned Negative Declarations because, as here, the lead agency failed to give sufficiently close consideration to historic impacts. These included the rezoning of land to facilitate construction of a hotel (Matter of Kravetz v. Plenge, 102 Misc.2d 622 [Sup. Ct. Monroe Cty. 1979] ), the confirmation of a cable television franchise that would have led to the running of an aboveground cable on a historic property (Matter of Houser v. Finneran , 99 A.D.2d 926 [3rd Dept. 1984]), and the demolition of an historic building. Center Square Ass'n. v. Corning , 105 Misc.2d 6 (Sup. Ct. Alb. Cty. 1980).

Here, Respondents admit that alteration and/or demolition of buildings in the Village of Aurora/Wells College Historic District is a Type I action. See 6 N.Y.C.R.R. 617.4(9) (generally providing that actions occurring wholly or partially within, or substantially contiguous to, any historic building, structure, facility, site or district or prehistoric site that is listed on the National Register of Historic Places or other similar listing are Type I actions). However, the record is devoid of any objective evidence that the plans submitted mitigate the recognized impact.

Respondents also acknowledge that the Project would have an impact on Village recreational and historic resources. See Verified Petition, Exhibit "A", Part III, page 1. In light of the "relatively low threshold" of environmental significance, inherent in Respondents' admission is an underlying acknowledgment that the Project "may" have a significant adverse environmental impact, and thus requires an EIS. See West Branch Conservation Ass'n., supra at 841("inherent in the Planning Board's discussion of these issues was an underlying acknowledgment that there existed a potential for a substantial increase in potential for erosion yet another indicator of a significant effect on the environment").
As was found by the Third Department in Matter of New York Archaeological Council, et al, v. Town Board of Town of Coxsackie, 177 A.D.2d 923, 924 (3rd Dept. 1991), "[A]s the instant project was determined to be a Type I action with two "possibly significant" impacts upon the environment, the preparation of an EIS is required." Id. citing Matter of Shawangunk Mountain Envtl. Ass'n. v. Planning Bd., 157 A.D.2d 273, 275-276. Here, as in Matter of Shawangunk, supra , " despite the fact that the project was initially found to entail a substantial number of highly significant environmental risks, i.e., "potential large impacts", and its scope as approved remains largely the same as originally proposed, environmental review was cut short by the negative declaration, without the procedural safeguards of the EIS process, and without any assurance that the substantive requirements of SEQRA have been met." Matter of Shawangunk, supra at 497.

POINT III


THE COUNTY IMPERMISSIBLY SEGMENTED THE ENVIRONMENTAL REVIEW OF THE PROJECT AND FAILED TO CONSIDER CUMULATIVE IMPACTS

Section 8-0109(2) of the Environmental Conservation Law requires the Lead Agency making the determination of environmental significance to consider all of the potential environmental impacts of a project, including the long term and short-term effects of the project. The regulations implementing SEQRA provide that:

Actions might consist of a set of activities or steps. The entire set of activities or steps must be considered the action, whether the agency decision-making relates to the action as a whole or to only part of it. Considering only a part or segment of an action is contrary to the intent of SEQRA. If a Lead Agency believes that circumstances warrant a segmented review, it must clearly state in its determination of significance, and any subsequent EIS, the supporting reasons and must demonstrate that such review is clearly no less protective of the environment. Related actions should be identified and discussed to the fullest extent possible. 6 N.Y.C.R.R. 617.3(g)(1)

SEQRA also requires that, in making the determination of significance, the Lead Agency consider "reasonably related, long-term, short-term and cumulative effects, including other simultaneous or subsequent actions included in any long range plan that are likely to be undertaken as a result thereof." Sun Co., Inc. v. City of Syracuse Industrial Development Agency, 209 A.D.2d 34, 48(4th Dept. 1995), appeal dmssd ., 86 N.Y.2d 776 (1995).

In Teich v. Bechheit, the Second Department annulled a Negative Declaration issued for the expansion of a hospital parking lot where the hospital had previously identified the parking lot as the first step in a long-range plan for the hospital's expansion. The Court held that the Planning Board must consider the impacts of the hospital's long-range plans before improving the increase in the parking lot size. Specifically, the Court held:

The hospital's contention to the contrary notwithstanding, the records support the conclusion that the proposed parking lot was part of an overall plan for expansion of the hospital. Therefore, the Planning Board should have considered the proposed parking lot in the context of the larger plan of which it is an integral part. Its failure to do so constituted improper segmented review under the pertinent DEC regulations. Accordingly, the Supreme Court properly annulled the Planning Board's Negative Declaration.
Teich, 221 A.D.2d at 454.

Here, the administrative record states that parking, clearly a related action will be addressed in a subsequent application. Respondents now take the position that there will be no changes parking. See Fusco Affidavit, para. "17" . At best, Respondents have raised an issue of fact in that regard. See CPLR 7804(h).

There is no question that the Aurora Foundation has a plan for comprehensive development in the Village. That plan includes alterations and/or demolition of additional historic structures. There is no way for the Village to avoid a comprehensive SEQRA review of those additional proposals.
In Farrington Close Condominium Board of Managers of the Incorporated Village of Southampton, 205 A.D.2d 623, 626 (2d Dept. 1994), the Appellate Division again annulled a Negative Declaration which considered only a piece of a long range plan. In Farrington , the Village of Southampton proposed to develop a park on 17 acres of vacant land. The proposed park consisted of, among other things, a baseball field, parking lot, access roads, various playing fields, a fitness trail, playground, tennis courts and an administrative building. Id . at 626. The Village issued a Negative Declaration on the construction of only the baseball field, parking lot and access road. The Second Department annulled the Negative Declaration because the Village had failed to consider the environmental consequences of the entire park project, in violation of SEQRA segmentation doctrine. There, the Court concluded:

There is evidence in the record that in conducting its SEQRA review, the Board of Trustees considered the park project as consisting only of the construction of a parking lot, access roads and a baseball field, since these were the only features of the park which were immediately planned. However, as noted above, the ultimate development plans for the park anticipated much more. For the purpose of determining whether an action will cause a significant effect on the environment, the reviewing agency must consider reasonably related long term, short term and cumulative effects, including other simultaneous or subsequent actions, which are included in any long-range plan of which the action under consideration is a part. The Village failed to comply with this requirement.

The Respondents violated SEQRA by issuing a Negative Declaration for an integral piece of its long-range plan without properly considering the plan's overall environmental impacts in an EIS. This is precisely the kind of conduct that SEQRA was designed to prevent. 6 N.Y.C.R.R. 617.3(g)(1).

By illegally segmenting its long-range plans, the Village ignored its obligations under SEQRA and failed to consider the potential environmental consequences of this action.

CONCLUSION

For all of the foregoing reasons, the League respectfully requests status as Amicus Curiae in this proceeding, and further requests an Order granting the Verified Petition in all respects.

Dated: October 19, 2001
Albany, New York

MCNAMEE, LOCHNER, TITUS & WILLIAMS, P.C.
By:William A. Hurst
Attorneys for Preservation League of New York State