pet.html

STATE OF NEW YORK
SUPREME COURT : CAYUGA COUNTY

In the Matter of the Application of

AURORA COALITION, INC, ELIZABETH
KNIGHT and LINDA S. SCHWAB,

Petitioners, VERIFIED PETITION

For a Judgment Pursuant to Article 78
Of the CPLR

Vs. Index No.
RJI No.
VILLAGE OF AURORA,
VILLAGE OF AURORA PLANNING BOARD,
VILLAGE OF AURORA COMMUNITY
PRESERVATION PANEL and WELLS COLLEGE,

Respondents.

TO THE SUPREME COURT OF THE STATE OF NEW YORK:

The undersigned Petitioners, the Aurora Coalition, Inc., Elizabeth Knight and

Linda S. Schwab, as and for their Verified Petition herein, state as follows:

PRELIMINARY STATEMENT

This is a special proceeding commenced pursuant to Article 78 of the Civil
Practice Law and Rules ("CPLR") to challenge and seek redress from: (1) the decision(s) by the Community Preservation Panel of the Village of Aurora (hereinafter "CPP"), on June 5, 2001 and/or June 13, 2001 and/or September 4, 2001, to grant a Certificate of Appropriateness to Wells College, for demolition of the Vanderipe Building and for partial demolition and reconstruction of the Aurora Inn; and (2) the decisions of the Planning Board for the Village of Aurora (hereinafter "Board"), on August 16, 2001, making a so-called "negative declaration" with regard to environmental significance and granting site plan approval to Wells College for demolition and replacement of the Vanderipe Building and for partial demolition and reconstruction of the Aurora Inn.

Both the Aurora Inn and the Vanderipe Building (also referred to as the "Market") are listed in the National Register of Historic Places, as contributing components of the Village of Aurora/Wells College Historic District.
The decisions of the CPP and the Board were arbitrary and capricious and not

based on substantial evidence, represented an abuse of discretion and were in violation of law. In particular, these decisions ignored the historical and architectural importance of the buildings in question and violated numerous, important, substantive and procedural requirements of the State Environmental Quality Review Act ("SEQRA"), were in violation of the General Municipal Law, and, in the case of the CPP, were in violation of the Zoning Law of the Village of Aurora.
Accordingly, petitioners seek a judgment from the Court pursuant to CPLR
Article 78:
Declaring that the applications from or on behalf of Wells College, for a
Certificate of Appropriateness and for site plan approval, are in violation of General Municipal Law, Section 809, and must be resubmitted with the information required by that law.
Declaring that the Certificate of Appropriateness granted by the CPP, for
demolition and replacement of the Vanderipe Building and for partial demolition and reconstruction of the Aurora Inn, is null and void and of no force and effect; and
Remanding the application for a Certificate of Appropriateness back to the
CPP for proper review and decision, following the completion of all required environmental review and in compliance with the Village of Aurora Zoning Law and the corresponding "Rules, Regulations and Criteria" of the CPP itself; and
Declaring that the designation of lead agency and the determination of
environmental significance made by the Board on or before August 16, 2001, to be null and void and of no force and effect; and
Remanding the environmental review of the subject action back to the CPP
and/or the Board, for proper consideration pursuant to SEQRA, including (i) proper designation of lead agency, determination of the full scope of the action in question (ie., whether it consists only of the two demolition/reconstruction projects included in the proposed site plan, or whether it involves a broader set of activities or steps), and (ii) proper determination of environmental significance.
Requiring the lead agency to consult and cooperate with the NYS Department
of Environmental Conservation in planning for and carrying out its responsibilities under SEQRA.
Declaring that the site plan approval granted by the Board on August 16,
2001, for the demolition and replacement of the Vanderipe Building and for the partial demolition and reconstruction of the Aurora Inn, inter alia , is null and void and of no force and effect; and
Remanding the site plan application of Wells College for the Aurora
Inn/Market project back to the Board for reconsideration following the proper completion of all required environmental review; and
For the costs and disbursements of this action; and
For such other and further relief as the Court may deem just and proper.
JURISDICTION AND VENUE
This Court has jurisdiction to issue the relief requested herein pursuant to
CPLR Articles 4 and 78.

Venue is proper in this Court, pursuant to CPLR Section 506.

PARTIES
Petitioner Aurora Coalition, Inc., is a not-for-profit citizens' organization
created to promote, enhance and preserve the architectural, historic, cultural and economic integrity of the Village of Aurora and its environs. The organization operates out of Cayuga County. Most of its members are residents of the Village of Aurora.
Petitioner Elizabeth Knight is a resident of the Village of Aurora, living at 351
Main Street, approximately 500 feet from the buildings which are the subject of this proceeding. Her home was purchased from the Vanderipe family by her grandparents, in 1945. Dating back to c. 1790 (with additions in 1840 and 1900), her home is a significant member of the Village of Aurora/Wells College National Register Historic District. The value of her property is related to the cohesion and integrity of that historic district, and will be affected by the loss or degradation of other significant members, such as the Aurora Inn and Vanderipe Building. She frequently walks or drives along Main Street and will be affected personally by the demolition and replacement of the Vanderipe Building with a structure incompatible in scale, style and material with the historic district, as well as by any change in the appearance of the Aurora Inn.
Petitioner Linda S. Schwab is a resident of the Village of Aurora, living at 318
Main Street, approximately 1,500 feet from the buildings which are the subject of this proceeding. She has lived in Aurora since 1969 and visits the center of the village almost every day. She has participated in numerous community and college events conducted at the Aurora Inn. The existing, historical, interior features of the Inn contribute significantly to her personal enjoyment and appreciation of the Inn, as both a unique historical resource and as the public heart of the community. She uses the right-of-way immediately south of the Vanderipe Building to gain convenient access to the Lakefront. She has made use of the easy grade of this right-of-way to provide access to persons with limitations on their mobility.
Respondent Village of Aurora is a municipal corporation.
Respondent Village of Aurora Community Preservation Panel is an agency of
the Village of Aurora, duly established and appointed by the Village Board of Trustees. According to the Village Zoning Law, the duties of the CPP are, inter alia , "to preserve the desirable character of the Village with respect to its built environment and to prevent construction, reconstruction, alteration or demolition out of harmony with existing buildings " (Village Zoning Law, Article IX, Section 904 (b) (1).)
Respondent Village of Aurora Planning Board is an agency of the Village of
Aurora, duly established and appointed by the Village.
Respondent Wells College is an institution of higher education, chartered by
the State of York.

Respondent Wells College is the "applicant" to which both a Certificate of Appropriateness and site plan approval, for the so-called Aurora Inn/Market project, have been granted.

GENERAL ALLEGATIONS & BACKGROUND

The Aurora Inn and the Vanderipe Building (also known as the Market), are

both located in the commercial center of the Village of Aurora, on adjacent parcels fronting on Main Street.
Upon information and belief, the Aurora Inn and the Vanderipe Building are
owned by Wells College or by a wholly-owned subsidiary thereof.
In 1980, both the Aurora Inn and the Vanderipe Building were placed on the
National Register of Historic Places, as part of the Village of Aurora/Wells College historic district.
Immediately to the south of the parcel occupied by the Vanderipe Building
is a right of way running westerly and/or southwesterly from Main Street, toward the former railroad right-of-way and the shore of Cayuga Lake. To the southwest of the Aurora Inn and the Vanderipe Building is a Village park, along the shore of Cayuga Lake. All of these properties are depicted on an annotated version of a survey of the area, dated January 8, 2001, which is appended hereto as Exhibit A. (The Vanderipe Building is depicted therein as "Pizza/Deli.")
According to a letter prepared by the attorney for the Village, in 1994 (copy
appended hereto as Exhibit B), the right of way south of the Vanderipe Building "has been used continuously for more than 50 years by the Village and its residents for ingress and egress to said park (Parcel No. 31)." (The letter was written to the then-managers of the Aurora Inn and the Market, requiring them to remove obstructions that had been placed in the public right of way.)
The aforementioned right of way has been used for both pedestrian and
vehicular access (including emergency vehicles).
The Village park appears to be surrounded by privately owned land (and the
Lake), thus effectively rendering it "landlocked," but for the aforementioned right of way linking it to Main Street.
The Vanderipe Building currently houses an ongoing retail business (pizza
shop/deli). In the Fall of 2000, Wells College closed the Aurora Inn.
In February, 2001, Wells College officials and alumna Pleasant Rowland
jointly announced plans to create the Aurora Foundation. According to the spokespersons, the Foundation would acquire various commercial properties in the village and "revitalize" them.
Originally, the Aurora Foundation was described as a not-for-profit entity;
months later, it was disclosed that it would take the form of a limited liability company, which would be permitted to earn a profit. The Aurora Foundation, LLC, filed
incorporation papers with the New York State Department of State on April 13, 2001.
Upon information and belief, which belief is based upon public statements by
Pleasant Rowland and other representatives of the Aurora Foundation, the members of the Aurora Foundation board are three members of the board of directors of the Pleasant T. Rowland Foundation (Ms. Rowland, acting as chair, and two individuals to be named) and two representatives of Wells College (President Lisa Ryerson and trustee George Edwards).
A list of properties in the Village to be acquired "under the Aurora
Foundation umbrella," as well as others to be "contributed" by Wells College and several purchased by Ms. Rowland, was submitted to the Village Planning Board on June 7, 2001, by Jay Woolford, "principal" of Springton Development Services, LLC, of Media, Pennsylvania, an entity apparently working with the Aurora Foundation and/or Wells College. The list, a copy of which is appended hereto as Exhibit C, includes at least 14 different properties, half of them commercial and many of them historic.
Mr. Woolford's letter discusses the intent to have "an Aurora Foundation
plan" (involving the properties being acquired) ready for review by October, 2001, and the need to develop "a comprehensive plan." Likewise, previous statements by spokespersons for the Rowland/Wells partnership referred to an overall "master plan" for the commercial revitalization of the village, involving numerous Aurora Foundation properties.
On or about April 18, 2001, Wells College submitted applications for a
"zoning permit" and a certificate of appropriateness, for its "Aurora Inn project," together with a Short Environmental Assessment Form (SEAF) for actions that are "unlisted" pursuant to SEQRA. (Copy of the SEAF appended hereto as Exhibit D. Copies of the applications for a zoning permit and for a certificate of appropriateness are appended hereto as Exhibit E.)

On or about May 9, 2001, a Full Environmental Assessment Form (hereinafter "EAF") was submitted by the applicant. In the EAF, the "action" subject to SEQRA is described as:
a construction project to renovate an 1833 inn, known as the Aurora Inn, at
391 Main Street, Aurora, New York. The project will include renovations to the
inn itself, removal of additions previously made to the north and west sides, and
construction of a new addition to the west side. The project will also involve the
combining of the parcels at 391 and 385 Main Street, removal of the Vanderipe Building now occupying 385 Main Street and construction of an addition to the inn on that parcel.

Neither application nor the EAF contains any information regarding any other
related project being proposed or considered by Wells College or the Aurora Foundation, as part of its overall plan for Village revitalization.
The new building proposed to replace the Vanderipe Building extends into the
aforementioned right of way which has historically been used by the public and claimed by the Village. Nevertheless, the applications make no mention of the need for a zoning variance or any other form of permission from the Village to use the right of way.
The so-called "zoning permit" application was treated by the Village as an
application for site plan review, requiring approval of the Planning Board, pursuant to the Village Zoning Law, Article X. (Copy of Article X appended hereto as Exhibit F). The application for a Certificate of Appropriateness was handled by the Community Preservation Panel, pursuant to the Village Zoning Law, Article IX. (Copy of Article IX appended hereto as Exhibit G.)
At its meeting on May 9, 2001, the Planning Board declared itself to be lead
agency for the environmental review of the "Aurora Inn project."
Also at that meeting, the Board discussed the issue of "segmentation" of the
environmental review of a set of projects being considered by the Aurora Foundation. According to the minutes of the meeting (copy appended as Exhibit H), Chairperson Nancy Gil said that "although the Planning Board may not consider the inn and market project to be segmented, nonetheless, when the next application is submitted for changes to another property dedicated to the Aurora Foundation, a master plan will be required of the Foundation [emphasis added]." (See item 2.)
Following the May 9th Planning Board meeting, Part 1 of the EAF was
revised. Upon information and belief, Board chairperson Nancy Gil made and signed certain handwritten revisions (on pages 4, 5, 7, 8 and 9), which are dated May 29, 2001.

Upon information and belief, Ms. Gil also drafted Part 2 of the EAF.

(Copy of EAF, with Part 1 as revised by Ms. Gil, and Part 2, believed to have been drafted by Ms. Gil, appended hereto as Exhibit I.)

One of the changes made by Ms. Gil see page 4, question 13 of revised

EAF, Part 1 (Exhibit I) corrects the applicant's claim that the project is not "presently used by the community as an open space or recreation area." As explanation, the Board chair noted on the EAF: "current ROW is on the parcel; new ROW will have to be surveyed, approved, agreed to by Village before demolition/construction may begin." Part 2 echoes this; question 13, on page 17, indicates a "potential large impact" on open space and recreation and states, "current ROW will disappear; Village needs proof of new ROW to park."
Part 2 of the EAF also contains the following determinations:
"No" impact on aesthetic resources (question 11).
"Small to moderate impact" on historic and archeological resources (question
12)
Part 2 of the EAF, which was produced by the Village Clerk upon Petitioners'
request, is missing pages 18 and 19. Upon information and belief, page 19 includes the first portion of question 19, which involves the impact on the character of the community. The only impact noted (on page 20) is a "small to moderate" one on employment ("create jobs at Inn; encourage growth of other businesses").
In a letter dated May 31, 2001 (copy appended hereto as Exhibit J), the
Planning Board notified the following agencies of its decision to serve as lead agency for the Aurora Inn/Market project, and invited them to respond before June 10, 2001, "if you think some other entity should be lead agency."
Village Board of Trustees
Community Preservation Panel
Cayuga County Planning
NYS Department of Recreation and Historic Preservation [sic]

At its meeting on June 5, 2001, the CPP apparently voted to grant a Certificate
of Appropriateness for part or all of the Aurora Inn project. (Copy of minutes of 6/5/01 CPP meeting appended hereto as Exhibit K.)
Just prior to the vote, the chair distributed copies of a typed, untitled and
unsigned statement, which was apparently intended to reflect the position of the entire CPP (as it is written primarily in the first person plural). The statement (a copy of which is appended hereto as Exhibit L) lists seven points that "we have considered," in reaching a decision on the Certificate of Appropriateness, including the following.
The Aurora Inn and Vanderipe Building are "found to have many long term
and significant structural problems, which are serious, and in certain cases, dangerous."
As to the historical significance of the buildings, "although they are old and
we are used to them, [they] are not particularly rare or unique in their own right, as defined by the phrase 'historical significance.'"
As to the economic viability of uses alternative to demolition, the statement
says "we have seen the results of the Bohan Study which show that the Inn and Market cannot continue as they are "
As to future plans for the property, they are found "to be sound and well
thought out, and certainly in keeping with the present use."
"We have also considered many other 'local factors' including parking
problems, future employment opportunities, zoning issues and possible alternatives to the proposed plans."
Apparently due to some confusion about the scope of its previous decision,
the CPP conducted a special meeting on June 13, 2001, and again voted to approve a Certificate of Appropriateness for the proposed demolition of the Vanderipe Building, the construction of a replacement building and the proposed changes to the Aurora Inn. (Copy of Certificate of Appropriateness appended hereto as Exhibit M.)

At its next meeting, also on June 13, 2001, the Planning Board reviewed the

EAF (Part 1 as revised by chairperson Gil; Part 2 apparently as drafted by Ms. Gil) and noted that "still three questions remain right of way issue; historic site diggings; contiguous lot issue." It was also noted that "nothing was received from the State Historic Preservation Office. Thirty days have now passed." The minutes of the meeting (copy appended hereto as Exhibit N) do not indicate whether the Board made any changes to the EAF, Part 1 or 2.
At that meeting, the Board apparently voted unanimously in favor of the
proposed site plan for the Aurora Inn project, "contingent on the resolution of all of the following issues: right of way; SEQRA date; contiguous lot and historic site while demolition occurs."
In a letter dated June 20, 2001, addressed to a Village resident and copied to
the Board (copy appended hereto as Exhibit O), Richard Lord, Historic Sites Restoration Coordinator for the New York State Office of Parks, Recreation and Historic Preservation (OPRHP), noted that OPRHP had not received a request for SEQRA comments from the Planning Board, nor had the State agency received the most current version of the plans for the project. Mr. Lord requested that OPRHP be given an opportunity to make such comments, as an interested agency. Mr. Lord also recommended that the Aurora Inn project be treated as a Type 1 action under SEQRA.
In an email message dated June 29, 2001 (copy appended hereto as Exhibit
P), addressed to a Village resident and copied to the Planning Board, Ralph Manna, Regional Permit Administrator for the New York State Department of Environmental Conservation (DEC), suggested that the Aurora Inn project was "likely" to be a Type 1 action and that the DEC could be an involved agency if a DEC permit were required (eg., for a dock on Cayuga Lake). He also cautioned that no approval could be granted prior to a determination of significance pursuant to SEQRA.
On or about July 3, 2001, Wells College commenced an action pursuant to
Article 15 of the Real Property Actions and Proceedings Law, to establish sole ownership of the right of way immediately to the south of the Vanderipe Building. Notwithstanding the Village's historical position that the right of way was public and had been used by the Village and its residents for access to the otherwise landlocked Village park along Cayuga Lake, the Village was not named as a party in interest.
At a meeting of the Planning Board on July 11, 2001, the chairperson
reported that "the developers (Wells College) have voluntarily decided to resubmit SEQRA papers for the Inn/Market project, as a Type 1 project."
Petitioners have been unable to determine whether a new EAF was in fact
submitted (subsequent to the revisions made by Board chair Nancy Gil on May 29, 2001 and reviewed by the Board on June 13, 2001).
On July 11, 2001, Richard Lord (of the OPRHP, as noted above) sent another
letter to the Planning Board, relaying comments as an interested agency, pursuant to SEQRA. In his letter (copy appended hereto as Exhibit Q), Mr. Lord reiterates the historical significance of the Aurora Inn and Vanderipe Building. For example, he states that the Inn "is an extremely rare and intact surviving example of an early 19th century inn in New York State" and that "OPRHP considers the Inn to be extremely significant and its integrity very high." He also notes that certain decisions by the Village "may be based on incorrect information" and goes on to explain these "incorrect assumptions."
In his letter, Mr. Lord also notes that use of the term "interior restoration," by
the project architect (HOLT), for the proposed work at the Aurora Inn, is "misleading." "The submitted plans indicate that this is a 'gut rehab' in which all interior walls and features even original or later historic walls, trim, doors and character-defining elements like fireplace mantels will be removed. The new proposal bears no resemblance to the historic condition Work of this nature, which essentially ignores the significant qualities of an historic building, cannot be characterized as restoration, preservation or even appropriate rehabilitation."
Mr. Lord also notes that "none of the material submitted by HOLT or the
Village documents the structural deficiencies noted in the CPP approval" (apparently referring to the statement distributed by the CPP chair on 6/5/01 see Exhibit L) and that "the building proposed to replace the Vanderipe Building does not reflect the proportions or detailing of historic structures from this period."
The letter indicates that "OPRHP recommends that the sponsor work with our
office to revise the current plan and develop a scheme that respects the Aurora Inn and the Vanderipe Building's historic significance and meets the Secretary of the Interior's Standards for the Treatment of Historic Properties . If the project remains unrevised, we feel that it exceeds the Type 1 threshholds defined by SEQRA and an Environmental Impact Statement (EIS) should be prepared."
The OPRHP sent additional letters to the Planning Board on July 12, 2001,
and July 20, 2001, elaborating on the agency's position and reiterating its recommendation that an EIS be prepared. Copies of these letters are appended hereto as Exhibit R.
On August 6, 2001, the OPRHP sent another letter to the Planning Board
(copy appended hereto as Exhibit S), explaining that pursuant to SEQRA, the impact of all aspects of the Aurora Inn project, including interior work, must be considered. This letter also explains that because both the Aurora Inn and the Vanderipe Building are listed in the National Register of Historic Places, they are "equal" under SEQRA and "the Planning Board must treat them consistently." Finally, this letter notes that as lead agency, the Planning Board is required to consider the impact of actions "related" to the Aurora Inn/Market project (such as changes to the nearby Heary Building, which is proposed to be the temporary home for the Market while the Vanderipe Building is razed and replaced) as well as "other projects proposed for the Village by the Aurora Foundation."
On August 7, 2001, the DEC sent a letter to the Planning Board (copy
appended hereto as Exhibit T), concurring with the re-classification of the Aurora Inn/Market project as a Type 1 action and commenting on the revised EAF. The letter notes a statement in the EAF that "parking [is] to be provided in another project" (see Exhibit I, page 5) and asserts that this "raises the question as to whether the full project is being assessed at this time."
The letter also refers to reports of a "larger project" or "master plan"
envisioned by Wells College "or some related entity" and that such a larger plan includes a marina and other developments. The DEC notes that a planned marina could affect the nature of the environmental review and the DEC's jurisdiction. The letter advises that "your record as lead agency should establish that other elements of 'plan' implementation either 1) are properly included in this review or 2) clearly stand alone as independent actions."
A follow-up letter from the DEC (copy appended hereto as Exhibit U),
dated and sent via facsimile on August 16, 2001, clarifies the Department's position that impacts on the interior of the Aurora Inn "should be examined in the environmental review and a conclusion should be drawn based on the record of that review."
On August 10, 2001, the OPRHP sent another letter to the Planning Board
(copy appended hereto as Exhibit V), responding to several "misstatements" that appeared in a recent letter to the local newspaper. The OPRHP letter also confirms the agency's willingness to travel to Aurora to tour the buildings in question and "to work with you to evaluate historic resource impacts and identify prudent and feasible project alternatives."
Upon information and belief, although the Planning Board had originally
invited OPRHP to come to Aurora and tour the buildings in question, the Board never made the necessary arrangements for Mr. Lord to do so.
On August 16, 2001, the OPRHP sent another letter to the Planning board, via
facsimile (copy appended hereto as Exhibit W). The letter enumerates OPRHP's formal comments on the Aurora Inn/Market project pursuant to SEQRA. It emphasizes again the importance of considering the impact of the entire project, including interior work at the Inn. It recommends that three components of the project the gutting of the Inn, the removal of an historic addition to the Inn and the demolition of the Vanderipe Building be determined to have "significant and irreversible adverse impact on the environment under SEQRA."
The letter also points out several procedural errors made by the Board in
carrying out the SEQRA process. The Board's notice declaring its intent to serve as lead agency did not include the EAF, did not provide the required 30-day period for response and was not initially copied to all parties identified in the EAF. Also, it did not include the Village Zoning Board of Appeals (ZBA) as a potentially involved agency, despite the unresolved issues regarding use of the right of way historically claimed by the Village.
As noted above (see Paragraph number 58 and Exhibit U), the DEC also
sent a letter to the Planning Board (and the ZBA), on August 16th, via facsimile. (This letter was read aloud at the Planning Board meeting that evening.)

Prior to its meeting on August 16, 2001, the Planning Board received

numerous, other written comments on the Aurora Inn/Market project, including letters from experts in the field of historic preservation and renovation, architecture and archeology, such as those from:
Jacquetta M. Haley (Haley Research & Consulting), a Wells College alumna who is also a museum professional with over 20 years of experience is historic house museums; she has also written landmark designations and worked on several National Landmark sites.
Cherry Maurer, a Wells College alumna (concentration in American architectural history) who has been a city planner for 25 years and has managed municipal historic preservation programs.
Sarah T. Welch, architect (Beardsley Design Associates); offered pro bono architectural services to Village, with regard to plans proposed by the Aurora.Foundation.
Alan Ominsky, Aurora resident, retired from 32 years with the Minnesota Historical Society, in the positions of Director of Design and Production for MHS Press, Restoration Coordinator and Assistant Supervisor of Historic Sites.
Andrea Z. Kozub, archeologist.
Copies of letters from the above-referenced individuals are appended hereto as Exhibit X.

At the Planning Board meeting on August 16, 2001, it was announced that the

applicant had submitted a revised version of project plans, dated August 10, 2001.
The Planning Board refused to allow public comment at the meeting on
August 16th (on the revised site plans or any other topic). As he indicated he would in his letter faxed earlier in the day, Richard Lord from the OPRHP (in Albany) attended the meeting, but he was not permitted to speak.
At the meeting, the Board approved Part 3 of the EAF. (Copies of Part 3 and
Determination of Significance appended hereto as Exhibit Y.)
The Board then voted, 4-0 (with one absence), based on the EAF, to make a
determination of no significant impact (negative declaration), pursuant to SEQRA. (Copy of "negative declaration" resolution appended hereto as Exhibit Z.)
The resolution declares the project to be a Type 1 action. It notes, in point #1
of the "Resolved" section (page 2), that its finding are based, at least in part, on the comments of the CPP, the OPRHP and others.
In point #1.e (page 3) of the resolution, the Board states that "after careful and
thoughtful review" of all comments, it has made the following findings upon which it bases its conclusion that the impact of the project on historical resources will be "small to moderate:"
While the Village of Aurora/Wells College Historic District is listed on the
National Register of Historic Places, neither the Aurora Inn nor the Vanderipe Building is individually listed.
Both buildings are in a deteriorating condition.
The Vanderipe Building is less historically significant than the Aurora Inn.
Previous external and internal renovations to both buildings have affected
their historical and architectural value.
The proposed changes will result in an exterior appearance reasonably
resembling the Inn's original exterior appearance.
The exterior design of the proposed replacement structure for the Vanderipe
Building will resemble appropriate architectural styles of the 1800s.
The proposed renovations to the Inn will substantially improve accessibility
for persons with disabilities.
"The interest of the applicant in upgrading the Inn to meet current fire and
safety codes and in reconfiguring the interior layout to improve operational efficiency and access for the disabled outweighs any interest OPRHP and the public may have regarding the appearance and design of the interior of the Inn."
The nomination form for the Village of Aurora/Wells College Historic
District is silent as to any interior features of the Aurora Inn or the Vanderipe Building.

The resolution states (in point #1.i, page 4) that "the Board identified a potential large impact to open space," but that because "the applicant has proposed to grant recordable easements to the Village to allow improved vehicular and pedestrian access to the Village Park," the potential impacts to open space are adequately mitigated "such that they can be fairly characterized as small to moderate."
The resolution states (in point #1.m, page 5) that "the Project is not one of

two or more related actions undertaken, funded or approved by the Planning Board " [emphasis added]

Upon information and belief, at least some Planning Board members did not

review the revised, proposed site plans until after the vote on the negative declaration. At the August 16th meeting, some Board members were observed unsealing the envelope containing the revised plans, after the vote on the negative declaration.
At the August 16th meeting, the Board approved the revised, proposed site
plans for the Aurora Inn/Market project. The site plan was approved (4-0), on the condition "that the right of way papers be filed."

On August 24, 2001, the OPRHP sent a letter to Village resident Karen

Hindenlang (copy appended hereto as Exhibit AA), noting "what appear to be severe and substantive procedural flaws evident in the Planning Board's review of this undertaking." The letter notes that the Board did not provide requested information so that the agency could comment in its capacity as an interested party under SEQRA, and that OPRHP had no opportunity at all to comment on the final plans for the project, because of their last-minute submission. The letter calls it "particularly unfortunate" that the public was prevented from commenting on the new plans.

Attached to the OPRHP letter of August 24th (and appended as part of Exhibit

AA) is a detailed list of the agency's concerns about the SEQRA review, as it involved the Planning Board and the CPP.
At its meeting on September 4, 2001, at the urging of the applicant, the CPP
considered "reacceptance" of the Certificate of Appropriateness for the Aurora Inn/Market project, to correct any "procedural" defects. At that meeting, the CPP did not review the revised plans of August 10, 2001. The chairperson, Avery Ayers, stated that the basis for the earlier decisions on the certificate of appropriateness, as set forth in his "report" of June 5, 2001 (see Exhibit L), "has not changed."

The CPP then voted unanimously to "reaccept" the decision on the certificate of appropriateness, "as previously studied."

AS AND FOR A FIRST CLAIM FOR RELIEF

Respondent CPP failed to comply with its obligations under the Village of
Aurora Zoning Law when it made no determination as to the financial hardship on the part of the applicant or of the economic viability of uses alternative to demolition, before issuing a Certificate of Appropriateness which permitted demolition (of the Vanderipe Building in its entirety, and of an addition to and other historical features of the Aurora Inn).
Village Zoning Law, Article IX, Section 907 (a), requires the CPP to
determine whether the proposed "construction, reconstruction or alteration" of a property will be "appropriate to the preservation of the Village for the purposes of this Article," or, notwithstanding that it may be inappropriate, whether failure to issue a Certificate of Appropriateness will involve "a substantial hardship to the applicant "
Article IX, Section 904 (d), recognizes that "because of the irreversible nature
of demolitions and the potential loss to the community of significant historic structures," certain additional criteria are to be applied by the CPP when demolition is proposed. These include a requirement that the CPP decision be based on "present condition of the structure" and "economic viability of use alternate to demolition."
Article IX, Section 908 (b) (1), stipulates that: "No building permit or
demolition permit shall be issued unless the Community Preservation Panel makes a finding that a hardship exists."
It is submitted that the CPP did not make any determination whatsoever, on
the record, that Wells College faced a substantial hardship, as that term is defined in Village Law.
As for the economic viability of uses other than demolition, the CPP's
rationale states that "we have seen the results of the Bohan Study and the affects [sic] 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 CPP has refused to make the so-called Bohan Study available for public
review.
Upon information and belief, the so-called Bohan Study does not establish
that demolition is the only economically viable course for the Vanderipe Building, or that full-scale interior gutting and demolition of an addition is the only economically viable course for the Aurora Inn.
The CPP fails to indicate that the Vanderipe Building is occupied by an
ongoing retail business.
It is submitted that basing its determination as to the economic viability of
structures in question, in lieu of demolition, solely on a reference to a document to which the public is denied access, does not satisfy this requirement of the Village Zoning Law.

The CPP's failure properly to make these required determinations was in violation of the Village Zoning Law. Furthermore, no building or demolition permit can be properly issued by the respondent Village, in the absence of such determinations.

AS AND FOR A SECOND CLAIM FOR RELIEF

The decision(s) of respondent CPP to issue a Certificate of Appropriateness

was arbitrary and capricious, not based on substantial evidence and in violation of the CPP's obligations under the Village Zoning Law, for the following reasons.
The CPP's decision was not based on a rational, objective or thorough inquiry
into "the pertinent historical significance of the structure" or the actual "present condition of the structure" or "the relationship of the affected parcel to its surrounding parcels," as required by Article IX, Section 904 (d) (2) of the Village Zoning Law. Vague, conclusory statements regarding the afore-mentioned issues, in the unsigned, undated statement that sets forth the rationale for issuing a Certificate of Appropriateness (see Exhibit L), are not referenced to any supporting documentation. Examples of such conclusory statements include:
"We have determined that although they are old and we are used to them, [the Aurora Inn and the Market] are not particularly rare or unique or wonderful in their own right "

"The relationship of the affected parcel to it's surrounding parcels [sic]. Regarding this, we feel the proposed plans are well thought out and will in fact enhance various and numerous aspects of the surrounding parcels."

"We have considered many other 'local factors' including parking problems, future employment opportunities, zoning issues, and possible alternatives to the proposed plans."

The CPP did not make a reasonable, good-faith effort to comply with the
principles it adopted from the Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings (1983). (Said principles appear on page 4 of the CPP's "Rules, Regulations and Criteria," adopted pursuant to Article IX, Section 904 (b) (3) of the Village Zoning Law, and approved by the Village Trustees on January 18, 1994. A copy of said "Rules" is appended hereto as Exhibit BB.) Inter alia , the principles state that "the removal or alteration of any historic material or distinctive architectural feature should be avoided when possible" and that "whenever possible, deteriorated architectural features should be repaired rather than replaced."
The CPP's decisions on June 5, 2001, and June 13, 2001, were made prior to
the applicant's revision of its proposed plans (during July). In its "reacceptance" of the June decisions, on September 4, 2001, there is no indication that CPP members actually reviewed the revised plans.
AS AND FOR A THIRD CLAIM FOR RELIEF

The decision of the CPP, on June 5, 2001, and/or on June 13, 2001, to grant a Certificate of Appropriateness, was in violation of SEQRA.
This decision, together with the written rationale therefor, was made prior to the completion of environmental review and determination of significance, by the lead agency (on August 16. 2001).
SEQRA establishes that no agency may approve an action until it has complied with SEQRA, ie., (in the case of a Type I or unlisted action) until a negative declaration has been issued by the lead agency or a draft EIS has been accepted. (See 6 NYCRR 617.3 (a) and (c).)
Therefore, the CPP's action on June 5, 2001, and June 13, 2001, was in violation of SEQRA and should be annulled.
It is submitted that the CPP's action on September 4, 2001, in which it

"reaccepted" its decision of June 13, 2001, did not in any way "cure" its violation of SEQRA was in fact merely a transparent, pro forma gesture, taken on the advice of the applicant, rather than a genuine "hard look," and for that reason should also be annulled.
On September 4, 2001, the CPP referred to and relied upon the exact
rationale distributed on June 5, 2001 (see Exhibit L). This rationale was produced prior to the completion of environmental review. Although the CPP was by then in receipt of several letters from the OPRHP and others attesting to the historical significance of both the Aurora Inn and the Vanderipe Building, as well as the inappropriateness of the proposed modification and demolition thereof, it did not address
any of these concerns in its "reacceptance" decision or rationale, on September 4, 2001.
AS AND FOR A FOURTH CLAIM FOR RELIEF

The determination by respondent Planning Board, that the proposed Aurora Inn/Market project would not have a significant impact on the environment, was arbitrary and capricious, not based on substantial evidence before the Board, an abuse of respondent's discretion as lead agency and in violation of both procedural and substantive aspects of SEQRA, and it should be annulled by this Court, for the following reasons:
The proposed action is a Type I action. SEQRA regulations, section

6 NYCRR 617.4 (a) (1), stipulate that
[T]he fact that an action or project has been listed as a Type I action carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS [Environmental Impact Statement].

(b) No documented facts were presented to or cited by the Planning Board which tend to rebut this presumption of significance. To the contrary, the Board received numerous written communications from the New York State Office of Parks, Recreation and Historic Preservation and individuals with experience and qualifications in architecture and historic preservation, as set forth in detail above, indicating that the proposed action would indeed have a significant adverse impact.
(c) Notwithstanding voluminous information indicating significant impact, the
Board determined, in its EAF, that the project would have no impact whatsoever on "aesthetic resources," and only "small to moderate" impact on "historic and archaeological resources."
Notwithstanding unequivocal advice from both the New York State DEC (the
agency charged with implementing SEQRA) and the OPRHP, that the failure to consider the impact of the proposed project on the interior of the Aurora Inn was contrary to SEQRA, the Board failed to address the proposed changes to the interior of the Inn (ie., full-scale gutting and reorientation of the corridors and main rooms) in the EAF.
(e) In its negative declaration resolution, the Board notes "the applicant's interest in upgrading the Aurora Inn to meet current fire safety and building codes and in reconfiguring the interior layout to improve access for the disabled" and concludes that this "outweigh any interest OPRHP and members of the public may have in the appearance and design of the interior of the Inn." However, as noted in a letter from OPRHP to the New York Department of State, Codes Division (copy appended hereto as Exhibit CC), the applicant does not intend to meet all codes and is in actuality seeking several variances from the New York State Uniform Fire Prevention and Building Code (ironically, on the grounds of "historic preservation").
(f) Notwithstanding public statements and correspondence from representatives
of Wells College and the Aurora Foundation, regarding a "master plan" involving numerous other properties in the Village and the historic district, the Board failed to consider the impact of any other, related projects. Furthermore, the Board failed to address parking issues related to the Aurora Inn/Market project, stating: "parking to be provided in another project."
(g) It is submitted that by deferring consideration of parking issues to an
unnamed "other project" apparently known to the Board, and by failing to consider the cumulative impact of the broader, "master plan" intended by Wells College and the Aurora Foundation, the Board improperly "segmented" the environmental review of related parts of a larger action. According to SEQRA: "Actions commonly consist of a set of activities or steps. The entire set of activities or steps must be considered the action Considering only a part or segment of an action is contrary to the intent of SEQR. 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 NYCRR 617.3 (g)) The Board did not make any such statement in its "negative declaration" (see Exhibit Z) or demonstrate that its segmented approach was no less protective of the environment. Chairperson Gil's promise that the Board would require a "master plan" for all Aurora Foundation projects when the "next" application came in (see Exhibit H) does not "cure" the problem of improper segmentation in the initial review.
The Planning Board conditioned its "negative declaration" and site plan
approval for the proposed Aurora Inn/Market project upon provision by the applicant of two new rights-of-way "to allow vehicular and pedestrian access to the Village Park." Part 3 of the EAF (see Exhibit Y) states that "based on this agreement from the Applicant [to provide new rights-of-way], the Planning Board finds that the impact, if any, to open space and recreation is small to moderate." A conditioned negative declaration by the lead agency is permitted only for actions defined under SEQRA as "unlisted," and not for Type I actions. (See 6 NYCRR 617.7 (d) (1).) Since the lead agency had determined that the Aurora Inn/Market project was a Type I action, it was a violation of SEQRA for it to make a negative declaration with attached conditions.

The Board's failure, as lead agency, to make a positive declaration and
require preparation of an EIS meant that neither the Board nor the CPP was able to take the "hard look" at the project's potential impact, as required by SEQRA.
The Planning Board did not make a proper determination of lead agency.
Upon information and belief, Part I of the EAF was not provided to all involved agencies, as required, prior to the determination of lead agency.
Furthermore, not all potentially involved agencies were contacted. It is
submitted that replacement of the right-of-way serving the Village Park may require action by the Zoning Board of Appeals, which was not contacted regarding lead agency status.
In addition, those involved agencies which were contacted were not given 30
days to respond, as required by SEQRA. (See Exhibit J.)

AS AND FOR A FIFTH CLAIM FOR RELIEF

The Planning Board acted in violation of the Village Zoning Law, regarding
site plan approval, when it failed to include in its review the "location, arrangement, appearance and sufficiency of off-street parking and loading," as required by the law. (See Article X, Section 1002 (c) (3), included in Exhibit F.)
Notwithstanding the requirement that parking be addressed in the site plan
review, the Board deferred the issue, noting in the EAF, "parking to be provided in another project." (See EAF, Part 1, B.1.f, included in Exhibit I.)
The other project in question was not identified by the applicant or the
Board.

AS AND FOR A SIXTH CLAIM FOR RELIEF

The applications for site plan approval and for a Certificate of Appropriateness were in violation of General Municipal Law, Section 809, which requires that "every application submitted for a license or permit, pursuant to the provisions of any ordinance constituting the zoning and planning regulations of a municipality shall state the name, residence and the nature and extent of the interest of any officer of such municipality , in the person making such application (hereinafter called the applicant) to the extent known to such applicant."
Upon information and belief, at least two members of the Planning Board to wit, Nancy Gil, chairperson, and Ken Kabelac are employees of Wells College.
Upon information and belief, at least one member of the CPP to wit, Avery Ayers, chairperson is an employee of Wells College.
The applications to the Planning Board and the CPP (see Exhibit E) do not include the required information regarding the employees of the applicant (Wells College) who sit on the boards empowered to act on those applications.

AS AND FOR A SEVENTH CLAIM FOR RELIEF

Petitioners face immediate, irreparable injury from the commencement of
the Aurora Inn/Market project, unless the Village is enjoined from issuance of a demolition/building permit and Wells College is restrained from beginning or continuing demolition in connection with either building.

Upon information and belief, which belief is based upon conversations with various Village officials, as a result of the issuance of a Certificate of Appropriateness

and approval of the proposed site plan, Wells College, as the applicant therefor and recipient thereof, is entitled to a demolition and/or building permit, which permit(s) could be issued at any time without further notice.

A demolition/building permit will allow Wells College to begin making changes to the Aurora Inn and Vanderipe Building approved by the Certificate of Appropriateness, including demolition and replacement of the entire Vanderipe Building and gutting of the interior of the Aurora Inn, together with demolition of an addition thereto.
Such changes will result in immediate and irreparable injury to the Aurora Inn and the Vanderipe Building as historic structures. Furthermore, should the demolition/building permit(s) issue prior to a determination by this Court on the underlying claims in this Petition, the judgment of this Court may be rendered ineffectual.
Therefore, the Village should be enjoined from issuing a

demolition/building permit for the Aurora Inn/Market project (or any other permission to proceed), pending a decision by the Court regarding the underlying matter herein. Your petitioners make application for an Order to Show Cause, accordingly.
Except for an action brought in this Court by respondent Wells College,
pursuant to Real Property Actions and Proceedings Law, Article 15 (Wells College v. Jane Doe, John Doe, et al, Index No. 01-619), seeking to establish ownership of the afore-mentioned right-of-way upon which part of the proposed Aurora Inn/Market project
is located, there are and have been no related proceedings, nor has a request for judicial intervention previously been filed in this proceeding.

WHEREFORE, petitioners pray that this Court enter judgment herein:
Declaring that the applications from or on behalf of Wells College, for a
Certificate of Appropriateness and for site plan approval, are in violation of General Municipal Law, Section 809, and must be resubmitted with the information required by that law.
Declaring that the Certificate of Appropriateness granted by the CPP (or as
subsequently "reaccepted"), for demolition and replacement of the Vanderipe Building and for partial demolition and reconstruction of the Aurora Inn, is null and void and of no force and effect; and
Remanding the application for a Certificate of Appropriateness back to the
CPP for proper review and decision, following the completion of all required environmental review and in compliance with the Village of Aurora Zoning Law and the corresponding "Rules, Regulations and Criteria" of the CPP itself; and
Declaring that the designation of lead agency and the determination of
environmental significance made by the Planning Board on or before August 16, 2001, to be null and void and of no force and effect; and
Remanding the environmental review of the subject action back to the CPP
and/or the Board, for proper consideration pursuant to SEQRA, including (i) proper designation of lead agency, determination of the full scope of the action in question (ie., whether it consists only of the two demolition/reconstruction projects included in the proposed site plan, or whether it involves a broader set of activities or steps), and (ii) proper determination of environmental significance; and
Requiring the lead agency to consult and cooperate with the NYS Department
of Environmental Conservation in planning for and carrying out its responsibilities under SEQRA; and
Declaring that the site plan approval granted by the Board on August 16,
2001, for the demolition and replacement of the Vanderipe Building and for the partial demolition and reconstruction of the Aurora Inn, inter alia , is null and void and of no force and effect; and
Remanding the site plan application of Wells College for the Aurora
Inn/Market project back to the Board for reconsideration following the proper completion of all required environmental review; and
For the costs and disbursements of this action; and
For such other and further relief as the Court may deem just and proper.

LOPINTO, SCHLATHER, SOLOMON & SALK
DANIEL L. HOFFMAN, ESQ.
Attorneys for Petitioners
200 E. Buffalo Street
Post Office Box 353
Ithaca, New York 14850
(607) 273-2202
DATED: September ___, 2001
Aurora, New York

Karen Hindenlang, for
THE AURORA COALITION, INC.

ELIZABETH KNIGHT

LINDA S. SCHWAB

VERIFICATION

STATE OF NEW YORK )
COUNTY OF CAYUGA ) ss:

Karen Hindenlang, being duly sworn, deposes and says that deponent is the Vice President of the AURORA COALITION, INC., a petitioner in the within action; that deponent has read the foregoing Verified Petition and knows the content thereof; and that the same is true to deponent's own knowledge except as to the matters therein stated to be alleged on information and belief, and as to those matters deponent believes them to be true. This Verification is made by deponent because the Aurora Coalition is a not-for-profit corporation. Deponent is authorized by the corporation to sign hereto on its behalf.

Karen Hindenlang

SWORN TO before me this
___ day of September, 2001.

Notary Public

VERIFICATION

STATE OF NEW YORK )
COUNTY OF CAYUGA ) ss:

LINDA S. SCHWAB, being duly sworn, deposes and says that she is a Petitioner in the within action; that she has read the foregoing Verified Petition and knows the content thereof; and that the same is true to deponent's own knowledge except as to the matters therein stated to be alleged on information and belief, and as to those matters deponent believes them to be true.

Linda S. Schwab

SWORN TO before me this
___ day of September, 2001.

Notary Public

VERIFICATION

STATE OF NEW YORK )
COUNTY OF CAYUGA ) ss:

ELIZABETH KNIGHT, being duly sworn, deposes and says that she is a Petitioner in the within action; that she has read the foregoing Verified Petition and knows the content thereof; and that the same is true to deponent's own knowledge except as to the matters therein stated to be alleged on information and belief, and as to those matters deponent believes them to be true.

Elizabeth Knight

SWORN TO before me this
___ day of September, 2001.

Notary Public

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