Article 78 Proceeding v City of Mount Vernon
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Transcript of Article 78 Proceeding v City of Mount Vernon
08-11-10 Notice of Petition Page 1
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER -------------------------------------------------------------------------X In the Matter of the Application of Index No.: FRANK DELEONARDIS, ROBERT DADARRIA, Assigned Justice: and SHERIECE MCKEAZIE, NOTICE OF PETITION Petitioners,
For a Judgment Pursuant to CPLR Article 78 -against- THE PLANNING BOARD OF THE CITY OF MOUNT VERNON, THE CITY COUNCIL OF THE CITY OF MOUNT VERNON, THE CITY OF MOUNT VERNON, and ATLANTIC DEVELOPMENT GROUP, LLC, Respondents. --------------------------------------------------------------------------X PLEASE TAKE NOTICE that upon the annexed Verified Petition dated August 11,
2010 and any exhibits annexed thereto, an application will be made to this Court at an IAS Part
thereof at the Westchester County Courthouse, 111 Dr. Martin Luther King Jr. Boulevard on the
28th
1. Annulling, vacating and setting aside the site plan approval resolution (the “Site
Plan Resolution”) adopted by Respondent Planning Board of the City of Mount Vernon (the
“Planning Board”) concerning property located on Oakley Avenue, Gramatan Avenue and Crary
Avenue in the City of Mount Vernon on the ground that they are arbitrary, capricious and
contrary to law;
day of September, 2010 at 9:30 a.m., or as soon thereafter as counsel may be heard, for relief
pursuant to Article 78 of the Civil Practice Law and Rules (“CPLR”) for an order and judgment:
2. annulling, vacating and setting aside the ordinance adopted by Respondent City
Council of the City of Mount Vernon (the “City Council”), which approved the text change to
08-11-10 Notice of Petition Page 2
the existing PUD-2 provisions in Section 267-22 of the Mount Vernon Zoning Code and any
mapping in connection therewith on the ground that it is arbitrary, capricious and contrary to
law;
3. annulling, vacating and setting aside the City Council’s SEQRA Findings
Statement in connection with the Property on the ground that it is arbitrary, capricious, contrary
to law and was not the subject of a “hard look” as required by SEQRA;
4. enjoining Respondent City of Mount Vernon from issuing any building permits in
furtherance of the Site Plan Resolution;
5. enjoining Respondent Atlantic Development Group from taking any action in
furtherance of the Site Plan Resolution; and
6. for such other and further relief as this Court may deem just and proper, including
but not limited to, reasonable attorneys’ fees and costs related to this proceeding.
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §§ 7804 (c) and (e),
answering papers, if any, as well as the certified return in connection with the proceedings before
the City Council and the Planning Board which form the subject matter of the above-captioned
proceeding must be served on Petitioners’ attorneys at the address designated below at least five
days prior to the return date.
Dated: White Plains, New York August 11, 2010 Law Office of Albert J. Pirro, Jr. Attorneys for Petitioners By:________________________ Albert J. Pirro, Jr., Esq. 1 North Lexington Ave, Suite 15 White Plains, New York 10601 (914) 287-6444
08-11-10 Notice of Petition Page 3
TO: City Clerk City of Mount Vernon City Hall Roosevelt Square Mount Vernon, New York 10550 Planning Board City of Mount Vernon City Hall Roosevelt Square Mount Vernon, New York 10550 City Council City of Mount Vernon City Hall Roosevelt Square Mount Vernon, New York 10550 Corporation Counsel City of Mount Vernon City Hall Roosevelt Square Mount Vernon, New York 10550 Atlantic Development Group, LLC 155 Avenue of the Americas, 3rd
New York, New York 10013 Fl
08-11-10 Verified Petition Page 1
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER -------------------------------------------------------------------------X In the Matter of the Application of Index No.: FRANK DELEONARDIS, ROBERT DADARRIA, Assigned Justice: and SHERIECE MCKEAZIE,
VERIFIED PETITION
Petitioners,
For a Judgment Pursuant to CPLR Article 78 -against- THE PLANNING BOARD OF THE CITY OF MOUNT VERNON, THE CITY COUNCIL OF THE CITY OF MOUNT VERNON, THE CITY OF MOUNT VERNON, and ATLANTIC DEVELOPMENT GROUP, LLC, Respondents. --------------------------------------------------------------------------X Petitioners Frank DeLeonardis, Robert Dadarria, and Sheriece McKeazie (the Individual
Petitioners are collectively referred to herein as the “Petitioners”), by their attorney, Albert J.
Pirro, Jr., as and for their Verified Petition, allege as follows:
1. This proceeding has been commenced pursuant to Article 78 of the New York
State Civil Practice Law and Rules (“CPLR”) to:
(a) Annul, vacate and set aside the following interrelated approval ordinances adopted by Respondent City Council of the City of Mount Vernon (the “City Council”) concerning property located at the intersection of Gramatan Avenue and Oakley Avenue (Map Page 165.54, Block 1122, Lots 1, 19 and 20) on Oakley Avenue (Map Page 165.54, Block 1135, Lot 10) and on Crary Avenue (Map Page 165.54, Block 1135, Lot 1) (collectively the “Property”) approving zoning text amendments to the PUD-2 Zone to allow residential and non-residential mixed use development within one-half mile of the Mount Vernon East Train Station subject to certain restrictions;
(b) Annul, vacate and set aside the ordinances adopted by Respondent City Council which established the PUD-2 District (as amended) for the Property;
(c) Annul vacate and set aside the Resolution of the City Council adopting the
SEQRA Environmental Findings for the proposed development;
08-11-10 Verified Petition Page 2
(d) Annul, vacate and set aside the Resolution of the Planning Board of the City
of Mount Vernon (the “Planning Board”) approving the site plan for the Project and any environmental findings in connection therewith;
(e) Enjoin Respondent City of Mount Vernon (“Mount Vernon” or the “City”)
from issuing any building permits in furtherance of the challenged Ordinances and Resolutions; and
(f) Enjoin Respondent Atlantic Development Group, LLC (the “Applicant” or
“Atlantic”) from taking any action in furtherance of the challenged Ordinances and Resolutions.
2. Under the State Environmental Quality Review Act (“SEQRA”), the City Council
as lead agency had the obligation to take a “hard look” at all potential adverse environmental
impacts.
3. The City Council was arbitrary and capricious when it adopted the Findings
Statement and the Zoning Text Amendments without taking a hard look at all potential adverse
environmental impacts, without consideration of all fiscal and economic impacts and without any
consideration of the significant adverse impact on community and neighborhood character.
4. The Planning Board was arbitrary and capricious when it approved the site plan
based on the flawed findings statement without conducting any independent environmental
review or making any independent environmental findings of its own.
5. The City Council and the Planning Board failed to evaluate environmentally
significant issues prior to their adoption of the challenged Resolutions and Ordinances.
6. Petitioner Frank DeLeonardis is a resident of the City of Mount Vernon and owns
real property located at 177 Gramatan Avenue, Mount Vernon, New York in close proximity to
the site of the proposed project. Mr. DeLeonardis is an aggrieved party that is directly affected
by the actions of the City Council and Planning Board.
THE PARTIES
08-11-10 Verified Petition Page 3
7. Petitioner Robert Dadarria is a resident of the City of Mount Vernon and resides
at 167 Crary Avenue, Mount Vernon, New York in immediate proximity to the Property. Mr.
Dadarria is an aggrieved party that is directly affected by the actions of the City Council and
Planning Board.
8. Petitioner Sheriece McKeazie is a resident of the City of Mount Vernon and owns
property at 173 Crary Avenue, Mount Vernon, New York in immediate proximity of the
Property. Ms. McKeazie is an aggrieved party that is directly affected by the actions of the City
Council and Planning Board.
9. Petitioners suffered actual and concrete harm and became aggrieved when the
challenged Ordinances and Resolutions were adopted, which committed Mount Vernon to a
direct course of future action.
10. Respondent City of Mount Vernon is a municipal corporation duly organized and
existing under the laws of the State of New York and situated in the County of Westchester.
11. Respondent City Council of the City of Mount Vernon is the elected legislative
body of Mount Vernon and is located in and maintains offices at City Hall, Roosevelt Square,
Mount Vernon, New York 10550.
12. Respondents Planning Board is the appointed body in Mount Vernon vested with
the authority to grant various land use, environmental and zoning approvals. The Planning
Board is located in and maintains offices at City Hall, Roosevelt Square, Mount Vernon, New
York 10550.
13. Respondent Atlantic Development Group, LLC is the Project applicant and, upon
information and belief, the owner of the Property and is duly organized under the laws of the
08-11-10 Verified Petition Page 4
State of New York with offices at 155 Avenue of the Americas, 3rd Floor, New York, New York
10013.
14. The Court has subject matter jurisdiction and may exercise personal jurisdiction
over Respondents in this matter.
JURISDICTION
15. Pursuant to CPLR Section 506(b), venue is proper in this Court because the
determinations complained of were made, and the material events took place, in the County of
Westchester, which is situated within the Ninth Judicial District.
BACKGROUND
16. The Property includes the site of the mixed-use Project located at Gramatan
Avenue and Oakley Avenue in the City, which property is designated on the City’s tax rolls as (i)
Map Page 165.54, Block Number 1122, Lot Numbers 1, 19 and 20 (the “Gramatan Site”), (ii)
Map Pages 165.54, Block 1135, Lot Number 10 (the “Oakley Site”) and (iii) Map Page 165.54,
Block Number 1135, Lot 1 (the “Crary Site”).
Description of the Property
17. The Project also includes the acquisition and/or improvement of certain property
owned by the City of Mount Vernon, as follows: (i) Atlantic’s acquisition of a fee interest in
certain real property in which the City is the record owner, consisting of property currently used
as a surface municipal parking lot, designated on the City’s tax rolls as Map Page 165.54, Block
Number 1122, Lot Number 1 (the “Surface Parking Lot”); and (ii) improvements by Atlantic to
the City’s Municipal Garage (“Municipal Parking Garage”) designated on the City’s tax rolls as
Map Page 165.62, Block Number 1117, Lot Numbers 1 and 14 located at 61 Gramatan Avenue
and 30 North Third Avenue.
08-11-10 Verified Petition Page 5
18. The Project, as proposed, required text amendments to the City’s PUD-2 Zoning
to amend the PUD-2 provisions to allow for residential and non-residential mixed-use
developments, within one-half mile of the Mount Vernon East Metro-North Train Station, and
subject to certain enumerated restrictions and requirements in: (i) a combination of all three of
the NB, CB and RMF-15; or (ii) the NB and RMF-15 Districts.
19. The Proposed Action included an ordinance to establish the PUD-2 District in the
Project Area.
20. The following chart identifies the various components that, together, constitute
the project area:
Phase Address Block and Lot Phase I 6 Oakley Avenue Map Page 165.54, Block Number
1122, Lot Numbers 1, 19 and 20 203 Gramatan Avenue 211 Gramatan Avenue Phase II 144 Crary Avenue Map Page 165.54, Block Number
1135, Lot 1 40 Oakley Avenue Phase III 30 Oakley Avenue Map Page 165.54, Block Number
1135, Lot Number 10 Municipal Parking Garage 61 Gramatan Avenue and 30
North 3rdMap Page 165.62, Block Number 1117, Lot Numbers 1 and 14 Avenue
Parking Lot 1 Oakley Avenue Map Page 165.54, Block Number 1122, Lot Number 1
21. The project, as approved by the challenged Ordinances and Resolutions includes a
mixed –use development for the property located within the Project Area. The Project consists
of three phases. Phase I consists of a mixed-use building, including, approximately 159
affordable/work force rental units, approximately 20,745 square feet of commercial retail space,
15,107 square feet of amenity space (including outdoor space), and 644 square feet of
community space for the City’s use and a second story municipal garage of 57 spaces.
08-11-10 Verified Petition Page 6
22. Phase I would consist of two wings: (i) a 13 story tower, plus a rooftop amenity
space, along Gramatan Avenue, and (ii) a 7 story wing, which would wrap around North Third
Avenue.
23. Phase II would consist of a 9-story building, plus a rooftop amenity space,
including approximately 59 affordable senior housing units, 1 unit for a resident manager, 2,915
square feet of amenity space, and surface parking for 15 cars.
24. Phase III consists of a 9-story residential building, plus rooftop amenity space,
including approximately 26,432 square feet of amenity space (including outdoor space) and 84
on-site surface parking spaces.
25. The project also includes renovation of the City’s Municipal Garage at the
location described above.
26. The project required certain text changes to the Mount Vernon Zoning Code
pertaining to the PUD-2 District, which is codified in Section 267-22 of the City Zoning Code
(the “Zoning Amendments”). The Zoning Amendments to Section 267-22 would: (i) allow the
minimum acreage for the establishment of the PUD-2 District to be met by counting street area
between the lot lines; (ii) allow the PUD-2 District to be established for mixed use projects
where the underlying Zoning Districts include either (a) a combination of the NB, C-B and
RMF-15 Districts; or (b) the NB and RMF-15 Districts; (iii) limit the establishment of the PUD-
2 District for mixed use projects to areas within a half mile of the Mount Vernon East Metro-
North Train Station.
27. The Amendments also include requirements for the establishment of the PUD-2
District for mixed –use projects, consisting of a maximum building height, maximum coverage,
08-11-10 Verified Petition Page 7
lot area per dwelling unit, setbacks, minimum distance between buildings, and limitations on
permissible principal and accessory uses.
28. The Zoning Amendments also establish off-street parking space requirements for
mixed use projects in a PUD-2 District, and permitted uses in a mixed use project in a PUD-2
District.
29. The Amendments also provide that a property owners association may own
common lands and facilities in units, the entity that owns the buildings would own and maintain
common lands and facilities.
30. The Proposed Action also included the establishment of the PUD-2 District on the
Project Area.
31. Finally, the Proposed Action includes a Land Acquisition and Development
Agreement (“LADA”) between the City and the Applicant, which will, among other things, set
forth: (i) the terms for the conveyance of the Surface Parking Lot to the Applicant, and (ii) the
Applicant’s obligations concerning the Project, including substantive conditions attaching to the
issuance of certain permits and approvals.
32. Upon information and belief, the City Council, as the lead agency under SEQRA,
issued a Positive Declaration finding that there was the possibility of a least one significant
adverse environmental impact as a result of the proposed development on the Property.
ENVIRONMENTAL REVIEW OF THE PROJECT
33. Upon information and belief, the City Council never adopted a scoping document
(the “Scope”) to serve as the outline for the Project’s draft environmental impact statement (the
“DEIS”).
08-11-10 Verified Petition Page 8
34. Upon information and belief, on November 24, 2009, the City Council accepted
the DEIS as complete for public review.
35. Upon information and belief, the City Council held a public hearing on the DEIS
on December 16, 2009 during which the public and any interested and involved parties could
comment on the Original Project and the alternatives proposed as part of the DEIS.
36. Upon information and belief, on or about June 11, 2010, the Project’s final
environmental impact statement (the “FEIS”) was accepted by the City Council as complete.
37. Upon information and belief, on or about June 29, 2010, the City Council adopted
a Findings Statement and made the following findings:
(1) Consistent with social, economic and other essential considerations from among the reasonable alternatives, the Proposed Actions are ones that avoids or minimizes adverse environmental impacts to the maximum extent practicable, and that adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating those mitigation measures that are set forth herein, which have been identified as practicable. (2) The Proposed Actions are ones that appropriately balance potential adverse impacts against potential beneficial impacts in the forms of creation of additional housing and commercial opportunities, generation of tax and other revenues, the overall redevelopment of vacant buildings and underutilized sites that currently exerts a blighting influence on the community with a mixed-use development consistent with a strategic gateway to the City’s downtown. (3) The written Findings Statement contains the facts and conclusions utilized by the City Council to make its decision.
THE APPROVED PROJECT
38. The project, as approved, will consist of the following:
(a) Phase I Consists of a thirteen-story mixed use building with 159 affordable/work force rental units, approximately 20,745 SF of commercial retail space, approximately 15,107 SF of amenity space, and approximately 644 SF of community services space which will be leased to the City and utilized by either auxiliary police or as public access studio, 116 parking spaces located on two levels (57 public parking spaces dedicated to municipal use and 59 private spaces), and an additional 118 parking spaces located in the City Municipal Garage.
08-11-10 Verified Petition Page 9
The Phase I building will have one curb cut along North Third Avenue which will be
used to access the two floors of public and private parking on site. This curb cut measures 24’-6”. In addition, a drop off area that measures 70’-9” will be provided along North Third Avenue. The commercial retail space in the Phase I building will be accessed through four places along Gramatan Avenue and two locations along Oakley Avenue. A separate access along North Third Avenue is provided for the residents of the Phase I Building and a separate entrance along North Third Avenue is provided for access to the auxiliary space. As part of the Phase I development, the Applicant has agreed to renovation of the Municipal Parking Garage located at Sidney Avenue. This revitalization will be conducted in conjunction with the Phase I building, but will be utilized for residential parking requirements of all three buildings. (b) Phase II Consists of a nine-story building with approximately 55,364 gross SF, 59 affordable senior housing units (12 studios and 47 one-bedrooms), 2915 SF of amenity space and 15 parking spaces located in the Municipal Parking Garage. No curb cuts, loading areas, or drop off areas will be provided as part of the Phase II building. Residents will access the site building along Oakley Avenue. (c) Phase III Consists of a nine-story residential building with 131 market rate residential units, 26,432 SF of amenity space and, 84 private parking spaces located on site, and an additional 84 private parking spaces located in the Municipal Parking Garage. The Phase III building has two curb cuts along C. Altschuler Place which are used to access the one floor of parking on site. In addition, one curb cut is located along North Third Avenue. 39. On July 7, 2010, the Planning Board approved the site plan for the project which
included numerous revisions from the prior site plan under review by the Planning Board.
40. Petitioners respectfully repeat and reallege the allegations set forth in Paragraphs
1 through 39 as if fully stated herein.
AS AND FOR A FIRST CAUSE OF ACTION
08-11-10 Verified Petition Page 10
41. Pursuant to SEQRA, the City Council was required to take a “hard look” at each
and every potential adverse environmental impact and to mitigate all such adverse impacts to the
greatest extent practicable.
42. The City Council failed to take a “hard look” and simply approved the project as
presented by the Applicant without regard to multiple adverse environmental and economic
consequences.
43. Petitioners respectfully repeat and reallege the allegations set forth in Paragraphs
1 through 42 as if fully stated herein.
AS AND FOR A SECOND CAUSE OF ACTION
44. SEQRA requires a governmental agency (e.g. the lead agency and involved
agencies) to make explicit environmental findings when it renders a decision on a matter for
which an EIS is required.
45. An involved agency has an independent duty to review the impacts associated
with its approval and evaluate same and is not bound by the lead agency’s actions.
46. As an involved agency, the Planning Board was obligated to adopt a findings
statement after the City Council adopted its Findings Statement.
47. On July 7, 2010, the Planning Board adopted the Site Plan Approval Resolution
which simply incorporated the conclusions in the City Council’s Findings Statement.
48. The Planning Board was arbitrary and capricious in relying upon the erroneous
Findings Statement adopted by the City Council because that Findings Statement did not
adequately evaluate the environmental impacts of the project.
49. Petitioners respectfully repeat and reallege the allegations set forth in Paragraphs
“1” through “48” as if fully set forth herein.
AS AND FOR A THIRD CAUSE OF ACTION
08-11-10 Verified Petition Page 11
50. The Planning Board members did not review, or have a reasonable opportunity to
review, the most recent revisions to the proposed site plan before voting to approve that site plan
with the most recent revisions to that site plan.
51. When questioned following the vote, only one member of the Planning Board
acknowledged having reviewed the site plan as then proposed on July 7, 2010 prior to voting on
that site plan on July 7, 2010.
52. Upon information and belief, due to the last minute submission of the site plan,
the Planning Board did not and could not properly review and evaluate the final site plan prior to
voting to approve that site plan on July 7, 2010.
53. Based on the foregoing, The Planning Board’s approval of the site plan on July 7,
2010 was arbitrary, capricious, contrary to law, without any rational basis and not based upon the
record before the Planning Board.
54. Therefore, the Site Plan Resolution must be annulled, vacated and set aside.
55. Petitioners respectfully repeat and reallege the allegations set forth in Paragraphs
“1” through “54” as if more fully set forth herein.
AS AND FOR A FOURTH CAUSE OF ACTION
56. One of the most significant issues presented to the City Council as part of the
SEQRA review of this project is the potential impact on the public schools should the proposed
project be constructed and occupied.
57. According to the calculations conducted by the City Council, its consultants and
the consultants for the Applicant, the projected student generation from the proposed project is
sixty-two (62) school children and, significantly, thirty-five (35) of those children would attend
elementary school.
08-11-10 Verified Petition Page 12
58. Upon information and belief, the designated elementary school for the children
who reside in the project area is Lincoln Elementary School.
59. However, upon information and belief, Lincoln Elementary School is currently
approximately one hundred forty-five (145%) percent of capacity and cannot possibly
accommodate an additional thirty-five (35) students without severely adversely impacting the
school’s ability to properly educate its student population.
60. The City Council, while aware of the potential severe impact on Lincoln
Elementary School, failed to either avoid or mitigate the significant over capacity the
construction and occupation of the proposed project would generate.
61. Instead, the City Council’s only response to this severe and adverse impact was to
require that, as a condition to the issuance of a Certificate of Occupancy, the Applicant use its
“best efforts” to work with the Board of Education to change the attendance zone for the project
area so that children living in the proposed project will attend either Pennington School,
Columbus School, or Traphagen School.
62. However, upon information and belief, while these alternate schools are not as
overcrowded as Lincoln Elementary School, they are also over capacity.
63. In addition, no study was undertaken as to the potential impacts to these proposed
alternate schools, which are a significant distance from the project area, which is less than a half
mile from Lincoln Elementary School.
64. No review was done to determine how the shift of attendance zones would impact
bus routes or the increase in number of children requiring busing or the overall impacts such a
disruption of established attendance zones would cause.
08-11-10 Verified Petition Page 13
65. Further and more significantly, there is no provision in the findings or any of the
approvals in the event the Applicant’s “best efforts” to work with the Board of Education do not
result in a resolution of this issue.
66. The City Council has effectively abdicated its responsibility and obligation as
lead agency to study and mitigate this significant, adverse and far reaching impact that could
potentially cause seriously detrimental consequences to one or more elementary schools and the
education of hundreds of young school children who attend those schools.
67. Rather than address this significant problem, the City Council has shifted that
responsibility to the Applicant and to the Mount Vernon Board of Education to determine how to
avoid severe impacts to the children who attend these schools from both existing residences and
those who will reside in the proposed project.
68. The City Council, as lead agency, has for all intents and purposes washed its
hands with respect to this significant adverse impact and told the Applicant and the Board of
Education to resolve a situation the City Council refused to address.
69. The City Council not only refused to take responsibility for this severe impact, the
findings, as adopted, allow the project to move forward without any mitigation to address the
overcrowding issue at these elementary schools should the Applicant and the Board of Education
be unable to resolve the issue.
70. Even if a resolution is eventually reached, the findings are fatally flawed because
the lead agency did not address this severe impact, and the City Council has not and will not be
able to study whatever solution is reached, if any solution is ever found.
71. There is now no way to determine what secondary or unanticipated impacts will
result from any resolution of this issue if some solution is worked out and, more concerning,
08-11-10 Verified Petition Page 14
what impacts there will be if no solution is ever agreed upon. The City Council has clearly failed
to take a ‘hard look” at this extremely significant adverse impact.
72. Once the Applicant demonstrates “best efforts” the project will go forward and
only time will tell what significant impacts will result in the absence of mitigation or what
impacts will result from some unknown agreement between the Board of Education and the
Applicant.
73. Based on the foregoing and the City Council’s complete failure to meet its
responsibility as lead agency, the Findings Statement adopted on June 29, 2010 is arbitrary,
capricious, contrary to law and without a rational basis and must be annulled, vacated and set
aside.
74. Petitioners respectfully repeat and reallege the allegations set forth in Paragraphs
“1” through “73” as if fully stated herein.
AS AND FOR A FIFTH CAUSE OF ACTION
75. The City Council limited its environmental review in connection with the zoning
text amendments to the PUD-2 “floating” zone to the project area for the proposed project being
challenged.
76. Upon information and belief, the newly amended PUD-2 “floating” zone is
applicable to areas significantly beyond the project area studied in connection with those
amendments.
77. Based on the foregoing, the amendments to the PUD-2 “floating” zone and the
environmental findings adopted in connection therewith are arbitrary, capricious, without any
rational basis, not supported by the record before the City Council, contrary to law and constitute
08-11-10 Verified Petition Page 15
a violation of SEQRA and the regulations promulgated thereunder and must be annulled, vacated
and set aside.
78. Petitioners respectfully repeat and reallege the allegations set forth in Paragraphs
“1” through “77” as if more fully stated herein.
AS AND FOR A SIXTH CAUSE OF ACTION
79. During the environmental review of the proposed project the City Council
reviewed and relied upon certain documents, studies, reports and reviews in order to reach the
findings made in connection with the approvals granted in connection with the proposed project.
80. Upon information and belief, some of those documents, studies, reports and
reviews that the City Council relied upon were and are not included in the public record
maintained in connection with the review and approval of the proposed project.
81. The failure to include all relevant documents relied upon by the City Council in
the review and approval of the proposed project in the records available for public review
constitutes a violation of SEQRA and the regulations promulgated thereunder.
82. SEQRA and the applicable case law requires literal and exact compliance with the
procedural rules and regulations for the conduct of any environmental review.
83. SEQRA also requires substantive compliance with respect to the open and
interactive process in connection with public participation and review of the environmental and
other impacts arising from any proposed project.
84. Based upon the failure to include all relevant documents, studies, reports and
reviews in the public record, the findings and approvals were adopted in violation of law and
lawful procedure and must be annulled, vacated and set aside.
08-11-10 Verified Petition Page 16
85. Petitioners respectfully repeat and reallege the allegations set forth in Paragraphs
“1” through “84” as if more fully set forth herein.
AS AND FOR A SEVENTH CAUSE OF ACTION
86. In connection with the review and approval of the proposed project, the Applicant
and the City on June 11, 2009 entered into a Memorandum of Understanding (“MOU”)
governing the process and procedures to be followed in connection with the environmental
review and development of the proposed project.
87. The MOU, among other things, set certain deadlines in connection with the
environmental review of the project which unreasonably restricted and limited the City Council’s
review of the project and the public’s ability to participate in and review the SEQRA process
undertaken by the City Council.
88. The MOU was made in violation of applicable law and constitutes a violation of
SEQRA and the regulations promulgated thereunder and illegally committed the City to a course
of action without required environmental review.
89. The MOU also contains numerous terms and conditions not included or studied as
part of the environmental review of the project in violation of law and lawful procedure.
90. Based on the foregoing, the findings and approvals adopted in connection with the
proposed project must be annulled, vacated and set aside.
WHEREFORE, Petitioners respectfully request that the Court enter a judgment:
(A) Annulling, vacating and setting aside the Site Plan Resolution;
(B) Annulling, vacating and setting aside the City Council’s Finding Statement;
(C) Annulling, vacating and setting aside the City Council’s Amendments to the Zoning
Ordinances;
08-11-10 Verified Petition Page 17
(D) Enjoining Mount Vernon from issuing any building permits in furtherance of the
Ordinances and Resolutions;
(E) Enjoining the Applicant from taking any action in furtherance of the Ordinances and
Resolutions; and
(F) Granting such other and further relief as this Court may deem just and proper,
including but not limited to, reasonable attorney’s fees and costs related to this
proceeding.
Dated: White Plains, New York August 11, 2010
Law Office of Albert J. Pirro, Jr. Attorneys for Petitioners By:________________________ Albert J. Pirro, Jr., Esq. 1 North Lexington Ave, Suite 15 White Plains, New York 10601 (914) 287-6444