Complaint (Filed) without exhibits.pdf

7/21/2019 Complaint (Filed) without exhibits.pdf

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U

N

ITE

D

ST

AT

ES DI

ST

RIC

T

CO

UR

T

N

OR

TH

ER

N

D

IST

RIC

T

O

F

N

EW

Y

OR

K

DOLOMITE PRODUCTS COMPANY,

[NC..

Pl

aint

iff,

CO

M

PL

AIN

T

ag

ains

t

J

UR

Y T

RI

AL

DE

MA

ND

ED

TO

WN O

F BA

LL

ST

ON

,

NE

W

YO

RK

:

TO

WN

BO

AR

D

o

f

th

e

TO

W

N Of

BA

LLS

TO

N.

N

EW

YO

R

K;

a

nd W

ILL

IA

M

G

OS

LI

N,

ind

ivi

dua

lly and

in

his ca

pac

ity

a

s

Tow

n

o

f

B

alls

ton

Bo

ard m

em

ber

,

Defendants.

P

lai

ntif

f

Do

lom

ite

P

rod

uc

ts

Co

mpa

ny

,

I

nc.

her

eina

fte

r

“

Do

lom

ite”

or

‘P

lain

tif

f’

b

y its

a

ttor

ney

s

Cou

ch W

hi

te, L

LP

.

as

a

nd fo

r

its C

om

pla

int

a

gai

nst

th

e

ab

ov

e-ca

pti

on e

d

Def

end

ant

s,

r

esp

ec t

full

y

a

lleg

es

as

fol

low

s:

S

UM

MA

R

Y

N N

AT

UR

E O

F TH

E

A

CT

ION

This action

is

brought

by

Dolomite

to

obtain redress

for past and

on-going pervasive

and co

nce

rted go

ve

rnm

en t

-sp

on s

ored

dis

par

ate trea

tm

en t

an

d

o

ther

ci

vil

rig

hts

vio

lat

ions

by

De

fend

an

ts

To

wn of

Ba

llst

on

t

he

“To

wn

” .

the

Tow

n Bo

ard

o

f

the To

wn of Ba

llsto

n th

e “To

wn

B

oard

”

co l

lect

ive

ly ,

t

he T

ow

n a

nd

To

wn

B

oa

rd a

re

ref

err

ed

to

he

re in as

th

e

“

Tow

n

Def

end

an t

s”

an

d

W

ill

iam Gos

lin

“Go

slin

”

co

llec

tiv

ely, t

he

To

wn De

fen

dan

ts an

d

Go

sli

n are re

fer

red

t

o

he

rein as

the “D

efe

nd a

nts

”

in

vo lv

ing D

olo

mi

te’s

law

ful

pr

ojec

t in t

he T

ow

n

of

B

all

ston

,

Ne

w

Yo

rk, in

clu

din

g

t

he

c

ons

pira

cy

f

orm

ed

by

D

efen

da

nts

to

vio

late

Do

lom

ite

’s

c

ivil rig

hts.

U

nde

r

w

ell

-es

tabl

ishe

d

N

ew

Y

or

k

l

aw,

mu

nici

pal zon

ing is r

equ

ired

to b

e

con

duc

ted in acc

ord

anc

e wit

h

a

co

mp

reh

en s

ive

pla

n.

3

A

co

mpr

ehe

nsi

ve

pl

an is th

e ess

enc

e of zon

ing

,” be

ing th

e

pr

odu

ct

o

f”a

ca

lm a

nd

1:15-cv-917 (GLS/CFH)

Case 1:15-cv-00917-GLS-CFH Document 1 Filed 07/27/15 of 54



deliberate

consideration of the

alternatives

and

not

.

the whims

of either

an articulate

minority

or even majority

of the community.”

Udell

i’.

aas

21

N.Y.

2d 463, 469

1968 .

4.

A

primary function

of

a

comprehensive

plan

is

to

“protect[]

the

landowner

from

arbitrary

restrictions on

the

use of

his

property

which can

result

from the pressures

which

outraged

voters

can

bring

to bear

on public

officials.”

Id.

at

470.

5.

It

follows

that the

“inclusion

of

the

permitted

use

in [a

zoning]

ordinance

is

tantamount

to

a

legislative

finding

that

the

permitted

use is

in harmony

with

the

general

zoning

plan and

will not adversely

affect the neighborhood.”

A

Shore

Steak

House v

Thoinasron,

30

N.Y.2d

238

244 1972 .

6. Justification

for

the

enactment

of zoning

legislation

that

interferes

with

a

permitted

property

interest

“must

be

found in

the needs and

goals

of

the community

as articulated

in

a

rational

statement

of

land

use control

policies

known

as

the

comprehensive

plan”

or that amendment

is

ultra

vires. Id.

at

477.

7.

Moreover, “ d iscrimination

in

zoning

is

usually

thought

of

in

terms

of

the

injustice

done

to

the landowner.

In reality,

it

is

also a “Tong

done

to the community’s

land

use control

scheme, It is

the

opposite

side

of

the

coin,

one

side of

which

is

‘spot

zoning ”

Id.

Zoning

and planning

decisions

are supposed

to be

madc on

a

level

playing

field

which

field is

described

and

expressed in the

comprehensive

plan.

9.

As explained

infra,

that

did not

occur here.

10. Rather,

a

deliberate

plan

and effort

led

by a

member

of the Town

Board, and

acquiesced

to, and

participated

in,

by

other Town

boards

resulted

in

a conspiracy

intended

to

deny

Dolomite

its

rights.

11.

Manufacturing,

including

the

production

of hot

mix asphalt, has

been

permitted

in

2




the

Town’s

Industrial District since at least 1985,

which

use

was

confirmed

by the

Town

when its

Comprehensive

Plan

was last

revised

in

2006.

12.

The

Town

also

revised

its

Zoning Ordinance

in

2006,

and

manufacturing,

including

the

production

of

hot

mix

asphalt, continued

to

be

a

permitted

use in the Industrial

District.

13.

The

Town

has

revised

portions

of

its

Zoning

Ordinance 45

times

since

1985.

14.

Since 1985,

the

Town

has

never

revised

the definition

of

or location

of

manufacturing

as

a

permitted

use.

15.

Since

Dolomite

started to

develop

its

plans

for i ts

hot

mix asphalt

plant a

permitte

use and

therefore

a

lawful

project

in the Town

of

BalIston

in 2010,

Dolomite

has repeatedly

been

subjected, after

being

assured that

it would

be

treated consistent

with

the Town’s

historic

treatment

of other businesses,

to

outrageously

arbitrary

and

capricious

conduct by officials

of the Town who

have

abused their authority

and

allowed

a

vocal

minority

and petty

prejudices

to govern

municipal

affairs.

16.

Truth

be

told, the

Town

did

not and

does

not

want

the

Dolomite project

to be

built.

17.

f

complete or

partial revision

of

the Industrial

District

was the avenue

by

which

to

accomplish

the

Town’s

goal, it had

legal

avenues

available to

achieve

such a

revision. However,

as

seen

below,

the

Town would

no t be

bothered with

the legal

niceties

required

to lawfully

foreclose

the

Dolomite

project.

18.

Instead, the

Town

adopted

defective

zoning revision

intended to preclude

Dolomite’s

lawful project

in contradiction

of

its

own Comprehensive

Plan, and

was undeterred

in

its efforts

by

the

fact that the

trial court.

as

explained

infra

nullified

that effort.

19.

Rather

than

going

back to the

drawing

board,

the Town reenacted

its

defective

zoning

amendment,

again

without considering

or modifying

its Comprehensive

Plan,

and

with

•1




even greater

notice

defects.

20.

While Dolomite

was

kept

busy

at

court,

the

Town, acting through another

of its

boards,

decided that

it

could

treat

Dolomite differently than

any

other business

that

was or

sought

to

be

located in the Town.

21.

Eventually,

having

seen and

heard

enough,

the

trial

court

granted

Dolomite

a

temporary

restr ining

order

as to

the

second

zoning

amendment,

based on

the

bad

faith

actions of

the

Town.

22.

Despite

the granting

of

the temporary

restraining

order, the

Town has remained

intransigent,

has

caused

enormous

harm to Dolomite

in

both time and

money,

and

Dolomite

has

been

left

with

no

option other

than

this

suit.

23.

The

civil

rights

violations

to

which

Dolomite

has

been repeatedly subjected

have

had

the

purpose

and

effect of depriving

Dolomite of its

constitutional

and

statutory

rights.

24.

Dolomite

seeks damages pursuant

to

42

U.S.C.

1983 as a

result

of

Defendants’

repetitious

and

purposeful

violations

of

Dolomite’s

substantive

due

process

and

equal

prote tion

rights

guaranteed by the

United

States

constitution

25.

The

constitution l

violations

articulated against

the Defendants,

who acted both

individually and

in concert,

arise

from

multiple

categories,

as

articulated

in

detail infr

all

of

which

were

aimed

solely

at the

prevention

of,

and

interference

with.

Dolomite’s

ability to

construct

its proposed

asphalt plant to

be

located

within the

Curtis

Industrial

Park

the “CIP” ,

located in the

Town.

26.

The

Town

Defendants,

individually

and in

concert

with

Goslin.

have viol ted

Dolomite’s

civil r ights

under

42

U.S.C.

1983

by,

among other

things:

i

discriminating

against

Dolomite’s lawful

project,

refusing

to

apply

the

same longstanding

standards to the

Dolomite

4




project

as

were applied to

other similarly

situated

businesses

within

the

CIP

and,

instead,

selectively

singling

out

Dolomite’s project

and

treating

it

in

a disparate

manner from

the

other

businesses

located

in

the CIP;

ii

repeatedly

extending.

dilatorily,

in

bad

faith

and with

m licious

intent,

the processing

of

Dolomite’s

site plan application

before

the

Town

of Ballston

Planning

Board

tlanning Board”

with

the

sole

aim

of

delaying

processing

to

permit

the

adoption

of

LL

No.

3-2013; iii

enacting

L.L.

No.

3-2013 with

the sole

intent of delaying,

hindering

and

preventing

Dolomite’s

project,’

despite

a

repetitive

bad faith statements

by Town

Board

offici ls

indicating

that said

law would

not

apply to

Dolomite’s

proposed

project

and b Defendants’

awareness

that the

law was, pre-adoption,

materially

defective as evidenced

by

the

public

statements

of the then

Town

Supervisor;

iv halting, dilatorily,

in bad

faith

and

maliciously,

the

processing

of Dolomite’s site

plan application,

ostensibly

as

a result

of the

enactment

of

L.L.

No.

3-2013,

but

in

advance

of

that law’s

statutory

effective

date;

v

frivolously

and

m liciously

refusing

in

bad faith

to

withdraw L.L.

No, 3-2013, despite

Defendants’

public

recognition

of its

facial and

material defects, demanding instead

that

the

Saratoga Supreme Court

judici lly nullify

said L.L. No,

3-2013 in order to

prevent

and

delay

Dolomite’s lawful project;

vi

demanding.

subsequent

to

the judici l

nullification ofL L

No. 3-2013, dilatorily,

in bad

faith and m liciously

that processing

of

Dolomite’s

site plan

application

be delayed

while

tie

minimis information

was

demanded

from,

and

supplied by,

Dolomite

in

order

that Dolomite’s

long-pending

project would

be

further

delayed,

hindered

and prevented

while

the

Town

prepared to

enact L.L. No.

2-2014; and

vii adopting

L.L.

No.

2-2014,

a

virtual

reenactment

of L.L . No.

3-2013, suffering

from

the

s me

Local Law

No. 3-20 was

judicially

nullified

by

the

Saratoga

County

Supreme

Court following

an

Article

78

special

proceeding commenced

by

Dolomite.

5




sub

stan

tiv

e,

and

eve

n g

rea

ter

no

tice

,

de

fec

ts

tha

n

its

p

red

ece

sso

r,2

fo

r th

e

sol

e

ma

lici

ou s

and

b

ad

fai

th

p

urpo

se

of

h

ind

erin

g,

de

layi

ng and

pr

eve

nt in

g

D

olo

mit

e’s la

wfu

l

pro

ject

,

and

inj

ur in

g

Dolomite .

27.

D

efe

nda

nts

’

co

ndu

ct is

and

sho

uld

be

dec

lare

d

u

nla

wfu

l, a

nd sho

uld

b

e

pe r

ma

nen

tly

e

njo

ine

d and

rem

ed

ied by

an ap

pro

pri

ate aw

ar

d

of

mo

neta

ry

da

ma

ges

, a

nd

D

efe

nda

nts

a

nd

a

ll t

hos

e

ac

ting in co

nce

rt w

ith th

em

sho

uld

b

e e

njo

ined fr

om

p

erfo

rm

ing a

ny a

nd

a

ll a

cts in

f

urt

hera

nc

e

o

f t

hei

r ac

ts

d

ep r

iv i

ng

D

olo

mi

te o

f

its con

stit

ut io

na l rig

hts

u

nde

r

th

e

law

.

JURISDICTION

AND

VENUE

28

.

Ju

ris

dict

ion

of th

e

C

ou

rt

is

bas

ed

on

28 U

.S.C

.

1331

and

134

3.

29

.

Thi

s

ac

tio

n

is

br

oug

ht pur

sua

nt

to

th

e

F

our

teen

th

me

ndm

en

t

to the U

nite

d ta

tes

C

on

stitu

tio

n,

as

w

ell

as t

he C

iv

il

Rig

hts

Ac

t,

42

U

.S

.C.

1983.

30

.

D

ecla

ra t

ory rel

ief

is

au

tho

rize

d

pur

sua

nt

to

2

8 U

.S

.C.

2

201

an

d

2

202

.

31

.

V

enu

e

is

pr

ope

r

und

er

2

8

U

.S.

C.

139

1 b

in

tha

t

D

efen

da

nts

re

sid

e,

a

nd the c

laim

s

a

lleg

ed h

erei

n

ari

se , in

th

is

Jud

ici

al Dis

tric

t.

P

RT

IES

32. o

lom

ite

is

a

dom

es

tic co

rpo

rati

on

d

uly org

an

ized an

d

ex

istin

g

u

nde

r t

he law

s

o

f

t

he

S

tat

e

o

f

N

ew Y

ork

w

ith

a

pr

inc

ipa

l of

fice

and p

lace

o

f

b

usin

ess

at

124

K

in

gs

R

oad

,

Sc

he

nec

tady

N

ew Y

ork 1

230

3.

3

3. Up

on in

for

mat

ion

an

d

b

elie

l t

he

Tow

n

is

a

m

un

icip

al cor

por

atio

n

inc

orp

ora

ted

No

ting that

as e

xpl

aine

d

below

L.L No.

2

-20

14

was

ad

opt

ed

p

rio

r

to

the

judi

cia

l

nu

llif

ica

tion

of

L.L.

No.

3-2

013

,

but

was

not

iced as

if L.L. No.

3 2013

whi

ch

Def

end

ant

s

knew

w

as

des

tine

d

to

be stri

cke

n

i

iev

er

existed.

6




under

the laws

of

the

State

of

New

York,

with

an

office

and place

of business at 323 Charlton

Road.

Baliston

Spa,

New

York

12020.

34.

Upon

information

and belief,

the

Town Board

is a

town

board duly

constituted

under, and

with

the power

and duties

provided

by,

the laws

of the

State of

New

York and

has

a

principal

address

of

323

Charlton

Road,

Ballston

Spa,

Saratoga

County,

New

York.

35.

Upon

information

and

belief,

Defendant

Goslin,

an

individual,

was

at all relevant

times

a

member

of

the

Town

Board

and

a

resident

of

the

Town.

FACTUAL BACKGROUND

Dolomite’s

Project

in

the Curtis

nd

ustr

ial

ar

k

36.

Dolomite

is

a

large materials

supplier to

the

construction

industry

in

upstate

New

York.

Some

of

its products

include aggregates

crushed

stone,

sand

and

gravel ,

ready

mix

concrete, and

asphaltic

concrete

commonly

referred

to

as

“hot

mix

asphalt”

or

“blacktop” .

37.

Blacktop

is

manufactured

by

heating

and

mixing

liquid

asphalt,

which

is

manufactured

off

site, with

varying grades

of sand

and

stone

depending

on

customer

needs

ag

driveways

or

highways .

38.

Most of

Dolomite’s

products

are known

as

high

volume/low

value

products.

The

value

of Dolomite’s

products

is

so

low

that

the

cost of transporting the

product

more

than

25

miles

from the

point

of

production

becomes

higher

than

the

market

price

for

the

product.

39.

The

further

the

distance,

the more

disproportionate

the

transportation

costs.

40.

Blacktop’s

market radius

is

further

curtailed by

the

requirement that

the

delivered

product’s

temperature

remain

above

specified

minimum

temperatures

based

on

the particular

type

of

pavement

being

placed.




41.

B

lack

top is n

ot he

ate

d

w

hile

in tra

ns it an

d

t

ca

nno

t

b

e h

aul

ed a

s

igni

fica

nt

d

ist

anc

e

wit

hou

t

c

ool

ing be

low pla

cem

en

t

sp

ecif

icat

ion

s.

42.

Blacktop transpo rta tion

costs

and

minimum temperature requiremen ts

result

in

a

ver

y

l

im i

ted

g

eog

rap

hic

m

ar

ketp

lac

e

th

at

c

an b

e

sup

plie

d

fro

m a

sin

gle

blac

kto

p

fa

cil

ity.

43.

W

he

n

ne

w

mar

ket

s

for

D

ol

omi

te’s

b

lac

kto

p

pr

odu

cts

are i

den

tifi

ed,

the g

eog

rap

hic

con

stra

int

s

d

is

uss

ed

ab

ove req

uire D

olo

mi

te

to

site

fa

cili

tie s

in cl

ose p

rox

im i

ty

to the

’

m

ar

ket

.

4

4.

n 20

10-

201

1,

as pa

rt

o

f

its

s

tan

dar

d

du

e

di

lige

nc

e

ef

for

ts. Do

lom

ite id

en t

ified

a

g

row

ing ne

ed

f

or its

pr

odu

cts

in t

he B

alls

ton an

d

M

alta

a

rea

in

S

arat

oga

Co

un

ty

an

d ide

nti

fied

t

he

Cur

tis

Ind

us t

rial

Par

k “

CIP

”

a

s a

v

iab

le

l

oca

tion

w

her

e

it

c

ou l

d

e

stab

lis

h

an

d

c

ond

uct b

lac

ktop

b

usin

ess

.

4

5.

Th

e CIP w

as an

ide

al loc

ati

on , not o

nly ge

ogr

aph

ica l

ly,

b

ut b

eca

use th

e

To

wn

’s

Com

pr

ehe

nsi

ve

Plan

and Z

on

ing Or

din

anc

e

spe

cifi

ca l

ly

i

den

tif i

ed

it as

a

p

ref

erre

d

l

oca

tion for

u

ses

su

ch as

Do

lom

ite’

s

bla

ckto

p

plan

t.

46.

Furth er,

the CIP was, and

is

a

sing le tax

map parcel

that had

existed

in

the

Town

for m

any ye

ars

,

p

red

atin

g

b

oth

the z

oni

ng

and

s

ubd

ivis

ion

l

aw

s

a

nd

,

as

e

xp la

ine

d

b

elo

w,

h

ad

hi

sto

rica

lly bee

n

tre

ate

d b

y th

e

T

ow

n

as

sin

gle

“u

se”

t

hat

of

ind

us t

rial

par

k in

w

hich

the

va r

iou

s

b

usi

nes

ses wit

hin

th

e C

IP

we

re

tre

ated by

the

Tow

n

as “

imp

rov

em

ents

”

w

ithi

n

th

e

indu

str

ial

p

ark

, rath

er

th

an

in

div

idu

al

us

es

to

whi

ch

mu

nici

pa l

lan

d use

law

s, su

ch

as

su

bdi

visi

on,

ap

pli

ed.

4

7.

o l

om

ite ’

s

se

lect

ion o1 a

nd l

ong

-ter

m

leas

e of

pro

pert

y in

,

the CIP

fo

r

t

he

m

anu

fac

ture

of

bl

ack

top was pr

edi

cate

d on i

ts ju

stifi

re

lian

ce on th

e

T

ow

n’s C

om

preh

en

sive

P

lan

,

its Z

oni

ng L

aw ad

op

ted con

sist

en t

w

ith

and in

r

elia

nce on the Co

mp

reh

ens

ive

P

lan

,

and

the

Tow

n’

s

hi

stor

ica

l

tre

atm

en

t

of

the es

tabl

ishm

en

t of

va

rio

us

bu

sin

ess

es

w

ith

in the C

IP

.

Eac

h

is




discussed

in rn

The Town’s

Comprehensive

Plan

48. On

or

about

June

of

2006, the Town

of

Ballston

completed

and

enacted

a

Comprehensive

Plan,

which recognized

that the

Town’s

existing

and

ftiture industrial

development

was

appropriately

located

in

the

northeastern part of

the

Town.

A copy

of the

Comprehensive

Plan

is

attached

hereto

as

Exhibit

“A ”

49.

The Comprehensive

Plan

specifically

noted,

and continues

to

note, that the

CIP

was

a good candidate

for

further industrial

development

that

would add

to the

Town’s

lax

base

see

Lx. “A”

at

27 .

50,

The

Comprehensive Plan

states

“In this

plan, the

Town

has identified

locations

where

industrial

and mixed

use

commercial

activities

are

desired

by

the

community.

Now

the

Town

should

identify

the

type

of

businesses

it hopes to

attract

and

then

develop

a

strategy

to

attract

those

businesses”

see

Ex. “A” at 55 .

51.

The 2006

Comprehensive

Plan

continues

to

remain

the

official

Comprehensive

Plan

for the

Town.

The Town’s

2006

Zoning

Law

52.

Consistent

with

its

Comprehensive

Plan,

in June 2006

the

Town revised

its zoning

regulations

to conform

with its

newly adopted

Comprehensive

Plan.

A copy

of the 2006

Zoning

Ordinance enacted

by L.L.

No. 5-2006

is

attached

hereto

as

Exhibit

“B ”

53.

Thereafter,

and

at all times

relevant

hereto,

the

manufacture

of

blacktop

has

been

permitted

use in

the

CIP

within the Town’s

Industrial

District

see

Ex.

“B” .

54.

Another

component

of

Dolomite’s

selection of

the

CIP as

a site

for

its

proposed

9




pla

nt w

as

its

f

tirth

er

aw

are

ne

ss

of

a

rece

ntl

y

c

onc

lud

ed d

isp

ute

be

twe

en

t

he

To

wn a

nd a

p

rop

erty

ow

ne

r

o

ve r

the

pr

ope

rty

ow

ne

r’s

p

lan to

lo

ca t

e

a W

al

-Ma

rt

s

tore

i

n the To

wn

.

55.

In

the

course

of

that

dispute, extensive

arguments

ove r

whether

the

Town

had

ap

pro

pria

tel

y

en

acte

d its 20

06

Zon

ing Ord

ina

nce

we

re re

sol

ved

at t

he

Ap

pel

late

Div

isio

n,

wit

h t

he

C

ou

rt

con

clu

ding

that

th

e

200

6

Z

on

ing

O

rdin

anc

e wa

s

“p

art o

f

a w

ell-

con

sid

ere

d

a

nd

co

mp

reh

ensi

ve

pla

n

c

alc

ulat

ed

to

serv

e

t

he

gen

era

l

w

elf

are

of

the co

mm

uni

ty .”

R

os

si

v

To

wn

Ed

.

o

f

the

To

wn

of

Ba

ilsio

n, 49

A.D

.3

d

1

13

8,

1

14

4

3

d D

ep’

t

2

00

8 qu

ota

tion

s

om

itte

d.

56.

In

ev

alua

tin

g

Ba

llst

on’

s

Z

onin

g La

w, th

e

A

pp

ella

te

D

ivi

sion

a

cce

pte

d

a

nd

agr

eed

w

ith

the

Tow

n

Bo

ard

’s

po s

itio

n

th

at

“th

e

p

lan

nin

g

an

d env

iro

nme

nta

l

re

vie

w co

nd

ucte

d

in

c

onn

ec

tion

wi

th

th

e

c

om

pre

hen

sive

p

lan

,

fin

din

gs an

d

co

nse

que

nt

zo

nin

g

ch

ang

es w

er

e

m

ad

e

w

ith

e

xtra

ord

ina

ry

c

are

and

th

orou

gh

nes

s,

an

d

rep

rese

nt

a

ba

lanc

ing

of i

ntcr

est in

th

e T

ow

n

of

B

alls

ton

.”

Id

57

O

n

Ma

y

20

11, a

nd

re

cog

niz

ing

th

at

the

T

ow

n

h

ad car

efu

lly an

d

th

oro

ug

hly

considered

the

propriety

of

allowing

the

manufac ture

of

blacktop

in

the CIP,

Dolomite entered

into

a

t

wen

ty

yea

r

L

eas

e

Ag

ree

me

nt

w

ith Cu

rtis

Ind

ust

rial

Pa

rk,

LL

C

a

nd

Sar

atog

a

Lu

mb

er Tra

ders

,

Inc

.

fo

r th

e

leas

e of a

ten

1

0 acre

p

arce

l

of

v

aca

nt

l

and

d

esi

gna

ted as Lo

t 55

in

the

C

IP,

in the

Tow

n

of

B

alis

ton

.

A co

py

o

f th

e L

ease Ag

ree

me

nt dat

ed

M

ay 1

201

1

is atta

che

d her

eto as E

xh

ibit

“

C

The Town’s

Historical

Application

of

its

Land

Use

Laws

to

the usinesses

in

the

CIP

58

The C

IP exis

ts with

in th

e

T

ow

n’s I

ndu

str

ial

Dis

tric

t.

59

U

pon in f

orm

ati

on

an

d b

elie

f,

pr

ior to

1

985

th

e

T

ow

n

had

n

ot

es

tab

lish

ed any

I

ndu

stri

al

Z

oni

ng Dis

tric

ts an

yw

here

w

ith

in

its

co

rpo

rate

bor

der

s.

1




60.

In 1985,

the

Ballston

Town

Board

adopted

a new

Zoning

Law

via

Local

Law No.

2-1985.

A copy

of

the

1985

Zoning

Law,

as filed

with the

New

York

Department

of State,

is

attached hereto

as

Exhibit

“ ”

61.

The 1985

Zoning Law

authorizes

the

creation

of Planned

Unit Development

Districts

“PDDs”

in

the

Town

to

provide

for the

“rezoning

of

land to

industrial

v lopm nt

zones”

Ex.

“D”,

Art. 9 .

62.

The

PDD

provisions

in the

1985

Zoning

Law contain

“Planned

Development

Industrial

Standards.”

which

are the

only “industrial

regulations”

contained

within

the 1985

Zoning

Law

Ex.

¶

9.4.C

63.

“Manufacturing”

was

defined

in the

1985 Zoning

Law as

“[ajny

process

whereby

the

nature,

size, or

shape

of articles

or

raw

materials

are

changed, or

where

articLes

are assembled

or

packaged”

Ex.

“D,” App.

A .

64.

Authority

to

create

industrial

development

PDDs

within

the

Town

predated the

1985

Zoning

Law,

as

evidenced

by the

existence

of

the

Schultz Industrial

Park.”

a

PDD

adopted

via

Local

Law No.

1-1984.

a copy

of

which

was annexed

to the

1985

Zoning

Law

Ex. “D,” App.

B .

65.

The

Town’s

first officially

designated

Industrial

District

was created

through

enactment

ofL L

No.

1-1986.

A copy

of

Local Law

No. 1-1986, as

filed with

the Department of

State,

is

attached

hereto

as

Exhibit

“E ”

66.

Local

Law

No.

1-1986

established

the

boundaries

of

the

Industrial

District,

encompassing

the

CIP.

and

established

“regulations”

for the Industrial

District

see

Ex. “E” .

67.

Local Law No.

1-1986

very closely

tracks

the content

and wording

of Local

Law

No.

1-1984.

which created

the Schultz

Industrial

Park,

a designated

PDD.

For

example,

both local




la

ws

c

on t

ain

p

rov

isio

ns

typ

ica

l

to P

DD

’s,

bu

t n

ot

t

o z

on

ing

d

istr

icts

,

s

uch as:

a

Str

ictl

y

lim

itin

g

the

ac

ces

s

roa

dw

ays

to

suc

h

eve

lop

me

nts

E

D

A

pp.

B

S

ec.

4

B v

;

E

x.

E,

Se

c. 7

A.3

h

“

[a]

cce

ss

to

the In

dus

tria

l

Zone

shall be

by

Route

50,

Route

67

and

Underpass

Road

only” ;

b R

eq

uiri

ng

t

ha t “bu

ildi

ngs

”

be

pro

vide

d

wit

h

po

tabl

e

w

ater

E

x, D

A

pp

.

B

,

Se

c.

5;

E

x.

E Se

c. 7

A.4

.A

;

c P

rov

idin

g

f

or on

-sit

e

sew

age

di

spo

sal

fac

iliti

es

E

x. D,

A

pp

.

B

S

ec.

5; E

x. F

,

Se

c.

7A.

4.B

;

d C

on t

ain

ing

pr

ovis

ion

s

f

or cor

rect

ion or f

ailu

re o

f

suc

h

on

-sit

e sep

tic

sy

stem

s

E

x.

D Ap

p.

B

S

ec.

5; Ex

, E S

ec.

7A

.4.C [no

tab

ly,

r

equ

irin

g

that

not

ice

of

su

ch fa

ilu r

e

s

hal

l

b

e giv

en

t

o

th

e

“

ow

ner

o

f

the

property”

or the

“tenan t

or

occupan t

of

the

property”] ;

e

Re

qui

ring

com

pl

ianc

e

w

ith th

e

Ne

w

Yo

rk

S

tat

e

Un

ifor

m Fir

e

Pre

ven

tio

n

an

d Bu

ild i

ng

Co

de Ex

.

D

,

A

pp. B

,

S

ec.

6; Ex.

F, S

ec.

7A

.5

;

I

R

eq

uiri

ng

t

hat

“

con

str

ucti

on

sha

ll

beg

in

w

ith

in

on

e 1 ye

ar fro

m

fi

nal a

ppr

ova

l

a

nd

issu

an

ce of al

l req

uire

d

p

erm

its

.”

In the

ca

se

of

th

e Sc

hult

z Ind

us t

rial

P

ark

,

“

FIR

.

Sc

hul

tz,

his s

ucc

ess

ors

an

d

ass

igns

”

an

d in

the

case

o

f

the

C

IP “T

he

d

eve

lop

er,

h

is or

he

r

su

cce

sso

rs an

d ass

ign

s”

sh

all

“b

e

so

lely and ex

clu

siv

ely

resp

on

sib l

e

for

obtaining

any

permits

requ ired

to

commence developmen t

of

the

lan

d

as

auth

ori

zed

b

y

th

is la

w.” E

x. D

,

Ap

p.

B Sec

.

7;

E

x.

E,

Se

c.

7A

.6.A

;

g

Pro

vid

ing tha

t “no

thi

ng

in

thi

s law

sha

ll be

co

ns tr

ued

to sat

isfy the

ob l

iga

tion

s

of

an

y

p

erso

n

t

o

o

bta

in

an

y

g

ove

rnm

ent

al

app

rov

al or

pe

rm

it

f

rom

any

gov

ern

me

nta

l

a

ge

ncy ot

her th

an t

he o

wn

of

al

lsto

n”

f

or pro

pos

ed

act i

viti

es

Ex

. D

A

pp. B

S

ec

. 7;

E

x, F

. Sec

.

7A

.6.

B ;

h R

eq

uiri

ng tha

t

ro

ads and u

tilit

ies wit

hin the

eve

lop

men

ts

s

ha l

l be

“installed

at

no

cost or

expense

to

the

Town,”

Ex.

D

App.

B

Sec.

8; Ex.

E,

Se

c.

7A.

7; ; an

d

i

R

eq

uiri

ng

t

ha t the p

rov

isio

ns o

f

t

he

zo

nin

g

law “re

lat i

ng

to bu

ildi

ng

perm

its

,

ce

rtif

ica t

es

o

f

oc

cup

anc

y,

inte

rpr

eta t

ion

s,

va

ria

nce

s,

spe

cial

per

mits

and vio

lati

ons

shal

l

ap

ply

to

all

u

ses

a

nd pr

opo

sed use

s,”

t

hat

th

e

law

s

sh

all be “a

dm

inis

ter

ed

in

ac

co r

dan

ce” with

the

Bal

lsto

n

Si

te

P

lan

Rev

iew

L

aw

;

an

d

th

at

ons

tru

tio

n

wi

thin

sa

id




developments

shall

“be subject

to

review

and approval

by

the Town

of Ballston

Plaiming

Board according

to the

standards

and criteria

established

in the

Town of Ballston

Site Plan

Review

Procedures.”

Ex.

D.

App.

B.

Sec.

10;

Lx.

E, Sec.

7A.6.C .

69.

Compliance

with

Town

legislation

relating

to

subdivision

of

land

is

not

required

by

either

law. see

Ex. D.

App. B,

Secs. 7.

10;

Ex. E.

Secs.

7A.6B. 7A.6.C

70.

Many

of the

foregoing

provisions

of

these

local laws

are present

in other

PDDs

subsequently

enacted

by

the

Town all

of

which,

like

the Schultz

Industrial

Park,

are known

as

“Parks” ,

but

almost

none

of

these

regulations

are present

in

the other

zoning

districts

contained

in

the

1985

Zoning

Law

or its

later

permutations.

71.

The Town’s

present Zoning

Law

“Zoning

Law” is

derived

from

the

1985/6

Zoning

Law. portions

of

which

are discussed

supra.

The present

Zoning

Law

is

codified

as

Chapter

138

of the

Town’s

Code,

which codified

version erroneously

continues

to

contain

L.L. 3-

20l3.

72.

The

2006 Zoning

Law defines

“use”

as

This

term is employed

in

referring

to the purpose

for which

any

buildings,

other

structures

or

land may be

arranged,

designed,

intended,

maintained

or

occupied;

any

occupation, business

activity

or operation

conducted

or intended

to

be

conducted

in a

building

or

other structure

or

on land.

The

term

“permitted

use” or

its

equivalent

shall

no t

be

deemed

to include any nonconforming

use

or

use

requiring

a

special

use permit.4

Cli.

138,

138-3 .

73.

The 2006

Zoning Law strictly

limits the

number

of

uses

per

lot

as

follows:

138 113. One use

per

lot

As

discussed.

infra this

law

was

nullified

by

Decision

and

Judgment

the

Saratoga

County

Supreme

Court

on

July

3 2014.

This

definition

was

not

affected

by

L.L.

3-20 3

and

remains

valid.




Except

in the

Mixed Use

Center

Districts,

Business

Highway

Districts

and 2. TND.

or

in

Planned Development

Districts, only

one principal

use

per

lot shall

be

allowed.

For

residential

lots,

no

more

than

one

single-family

detached

dwelling

shall be allowed

on

any

one

lot.5

Ch . 138,

138-113).

74.

The

CIP

is

not

located

in

the

Zoning

Law’s

Mixed

Use Center

District,

Business

Highway

District,

or in the

TND.

75 .

Neither

the CIP

nor “industrial

parks”

are listed

as permitted

uses,

or as

special

uses, in

the

Allowable

Use

Table

contained

in

the 2006 Zoning

Law.

76.

The

Town

has

revised

portions

of

its Zoning

Ordinance

45

times

since

1985.

77.

Since

1985,

the

Town

has

never

revised

the definition

of

or

location

of

manufacturing

as

a

permitted

use.

Dolomite

Submits

its

Site

Plan

pplication

to the

Town

in

2011

78.

On or about

June

6,

2011,

Dolomite

submitted

an

application

to the Town

Planning

Board

fo r site

plan approval

for blacktop

plant

in the

CIP. A

copy of

Dolomite’s

site

plan

application

is attached

hereto

as

Exhibit

“F ”

79.

As

required

by statute,

the Town

Planning

Board

referred

Dolomite’s

site

plan

application

to

the

Saratoga

County

Planning

Board

‘SCPB” .

0,

The

SCPB

determined

that

Dolomite’s

site

plan

application

was

a local

matter

and

would no t

have any

significant countywide

or

inter-community impact.

A

copy

of

the

SCPB’s

determination

dated

July

26 ,

2011

is

attached

hereto

as

Exhibit

“C ”

81.

On

August

31,

2011,

the

Town

Planning

Board

held

a

public

meeting

relating

to

This

regulation

was

not

affected

y

L.L.

3-2013

and remains

valid.

14




Dolomite’s

site

plan

application.

82.

At that meeting,

Town

Board

member

Timothy

Szczepaniak

“Szczepaniak”

spoke

out

against

Dolomite’s

project, stating

that

tiltim tely

really urge

the

Planning

Board

to

vote against

this

project.

You

know,

ultimately,

it’s no t the

right place

for

our town.”

A copy

of

the Transcript

of

the

August 31,

2011 Planning

Board

meeting

is attached

hereto

as

Exhibit

“H ”

83.

At

the

very

same

meeting,

Goslin

also

spoke ou t

against Dolomite’s project,

stating

that

“I stand

in opposition

to

this plant”

and

“I

would

urge

you to vote

against this

plant”

see

Ex .

a142,

45 .

84.

Szczepaniak’s

August

31. 2011

barely

disguised direction

to

the Planning

Board.

in

which

he

claimed

to

be

speaking

as

a

“concerned

resident,”

epitomizes

both

the concerted

approach

and

disposition

of

the

Town

of

Baliston

toward

Dolomite’s

project

see

H at 51 .

85.

Contrary

to Szczepaniak’s

instruction

to the

Planning

Board,

and

at

the same

hearing, the

Chairman

of

the

Planning

Board,

Richard

Doyle,

noted,

among

other

things,

that:

“You know,

t

is

an

authorized

site. It’s

been approved

by

the County and,

consequently,

you

have

to

come up

with

a

reason

why you cannot

have

this. It

has to

have

some

detrimental

effect.”

see

Ex,

H at 40 .

86,

Between

August

2011

and

Januan’

2012, Dolomite

incurred

significant

expenses

in

support

of its

site plan

application

and in

responding

to

questions

and

requests

for

information

from

the Planning

Board,

but its

site

plan

application

for

its

permitted

use continued

to progress.

Szczepaniak

and

Goslin

Target

olomite’s

Project

and

Promise

Voters

th

t it is Unnecessan’

to

Let

the

Town’s Lawful

Process

Work

87.

Although

Dolomite

was unaware

of

it at

the time,

its

site

plan review

process

was

destined

to

halt

due to

the

acts of newly

elected

member

of

the

Town

Board,

Goslin,

who

along

15




with

Szczepaniak

had campaigned

on

a platform

that

included

specific

opposition

to Dolomite’s

project

and

wanted

to

exclude

Dolomite

from

the

Town

A copy

of

Goslin’s

and

Szczepaniak’s

publicly

distributed campaign literature

from

November

8 2011

which demonstrates their

animus

to


in

particular

follows:

Like most

of

you

we

are opposed

Lathe Asphalt

Plant.

We

will v

t on any proposal

for an Asphalt

plant

So close

to our

residents]

Envrronmcntal

risks a

handful

of

jobs and

an added

stress

to

the problems

on Route 67

not

our opinion of smart

growth

Patty

Southworth’s

“let

the

process

work”

speaks

volumes.

The

plannng

board

will meet

after

the

election?

WE KNOW

WE

R RIGHT

ON THIS ISSUE

AND

ON

TUESDAY

NOVEMBER

am

LET

YOUR

VOTE

COUNT

Sincerely

PETE

CONNORS:

Candidate

for Supervisor

TIM

SZCZPANIAK:

Town

Council

BILL GOSLIN: Town

Council

16




88.

Th

e

ca

mp

aig

n

fly

er

is

the

si

ne qu

a

n

on

o

f

the m

ali

cio

us in

ten

t

tha

t

G

os

lin an

d

S

zc

zep

ania

k

he

ld fo

r D

olo

mi

te’s

pro

jec

t.

89.

Patty

Southworth identified

in

the flye r

as

stating

“let the process

work ”

was the

th

en

To

wn Sup

erv

iso

r

and

h

ad

pu

bli

cly st

ated

tha

t D

olo

mit

e’s

si

te

p

lan

app

lic

atio

n

was b

efo

re

t

he

Pla

nni

ng

Bo

ard an

d

law

full

y

su

bje

ct

to its

pro

ces

s

9

0.

R

at

her

tha

n lett

ing

th

e

p

roce

ss w

or

k.

G

osl

in

and th

e To

wn D

efen

da

nts

beg

an

a

con

cer

ted

pla

n

to

red

efin

e

th

e proc

ess

an

d

c

han

ge it

to on

e in wh

ich D

olo

mi

te’s

law

ful

p

roj

ect

c

ou ld no

t

be

b

uil

t.

91

.

On

Feb

rua

ry

7 20

12

w

ith

out

f

irs t or ev

er

c

ont

act

ing

D

olo

mi

te

b

ut

ref

ere

ncin

g

the

D

ol

omi

te

p

end

ing

site

pla

n

ap

pli

cati

on

Go

slin

w

ho

w

as

no w

a Tow

n

Bo

ard

m

emb

er sta

ted

in

his

sec

on

d

To

wn

B

oar

d m

eet

ing th

at

h

e

w

an te

d

to

c

han

ge

t

he To

wn

’s

z

oni

ng

to

re

stri

ct wh

at

he

ca ll

ed

“h

eav

y

i

ndu

stry

.” A cop

y

of

the M

ee

ting M

inu

tes o

f

t

he Feb

rua

ry

7.

2

012 Tow

n B

oa r

d

m

eeti

ng

is

a

ttac

hed

her

eto as

E

xhi

bit “

I.”

92.

As

evidenced

by the

content

of

articles written

by

Goslin aroun d

the sam e time

the

reas

on

for

the

p

rop

ose

d

am

end

me

nt

wa

s

to

p

roh

ibit

Do

lom

ite’

s

p

roj

ec t.

Ev

en

th

e

p

ubl

ic

rec

og

nize

d

tha

t

t

he zo n

ing

am

end

me

nts

w

ere

a

dop

ted

s

ole

ly

in

a

n atte

mp

t t

o

p

roh

ibit D

olo

mit

e’s

as

pha

lt pla

ntP

93. O

n Fe

bru

ary

18

201

2

G

os

lin p

ubl

ish

ed an

a

rtic

le

in

t

he

xliv

G

cce

ne.

the

o

ffic

ial

See Tr

ans

crip

t

To

wn Board

M

ee

tin

g

Se

pte

mb

er

24

2013 at

14 16-19

21-

22

24-25; Tra

nsc

ript

Tow

n

Board M

eet

ing May 13

20

14

at

5

17-18;

T

rans

cri

pt

To

wn Board

Mee

tin

g

Se

pte

mb

er

30

2

01

4

15-17

18

-19

23 n o

ting public

c

om

men

ts made by

re

side

nts

d

urin

g

Tow

n B

oar

d

me

eti

ngs

reg

ard

ing L.L. No.

3

2013

and

L.L.

No. 2

-20

14

all

r

efe

ren

cing

tha

t

D

olo

mit

e’s

pro

jec

t

was

the

focus oft

he z

on

ing

am

end

me

nt

incl

udi

ng

“w

ha

tev

er

the

Town has

to do

to

keep Do

lom

ite

out

of

our

ne

igh

bor

hoo

d.

100 p

erc

ent

we

feel as

a family

t s

hou

ld

be

d

one

”

Tra

nsc

ript

. Town Board

Me

etin

g

May

13

2014 at

5 “1

real

ly app

laud the

spirit and

the

en

erg

y

be

hind w

ha

t

you

are

doin

g

on

this a

sph

alt pl

ant

”

Id

at

17-18

and

“I am

con

cer

ned

re

gar

ding the p

rop

os

ition

for

Do

lom

ite

”

T

ran

scri

pt Town Board

M

ee

ting S

epte

mb

er

24

2013

at

25 .

17




Town newspaper. titled

“Zoning should

never allow

an

asphalt

plant

in

Ballston

Lake.”

A copy

of the February

IS.

2012 news

article

is attached

hereto

as

Exhibit

“J ”

The

article

goes

on to say

that

Like “The

Twilight

Zone,”

the

residents

of

Ballston

Lake

went

to

bed

in their lakeside

homes and

woke

up

in

the “Asphalt

Zone,”

No, this

was

no t

a dream.

The

quiet

lifestyle of

the

lake

community

is

now threatened

by

an asphalt

plant proposed

for

the

Curtis

Industrial

Park.

One of

the

reasons

the site was

chosen

for this

plant

was

that

the

park

is

zoned

by

the

Town

of

Ballston

as “industrial,”

and allows

“manufacturing”

or to be

more

specific.

heavy industry.

It

is time

to correct

this.

We

simply

change

the

word

“manufacturing”

to

“light

industrial”

and

define “light industrial”

using

language from

zoning

laws

in

any

of ’ our surrounding

towns.

We

also

need

to

limit

the

expansion

of

existing

heavy

industries,

like

the

proposed

asphalt

plant. It

may

be

too late to

stop

this

plant, but

we

can minimize

the

impact

of

the “asphalt

zone”

by

restricting

expansion.

Ex .

J).

94.

Goslin

published

the

same

article

in the Balls/on

Journal

and

Schenecwdy

County

Spotlight.

Copies

of

the

February

21,

2012

Bailsion

Journal

and March

2012

Schenectady

Couno’

Spotlight

articles

are

attached

hereto

as

Exhibits

‘K”

and “L”

respectively.

All

three

articles were

authored

by

Goslin

no t

in his

capacity

as

a citizen,

bu t

as

“Councilman,

Town

of

Ballston.”

The

Planning

Board

issues a

Positive

SEOR

Declaration

in Contravention

of its

Own

Consultant’s Opinion

95.

Three

weeks

after

Goslin publicly

stated

that

he

wanted

to change

the

zoning

law

to bar

“heavy

industry,”

the

Planning

Board

suddenly

issued

a

declaration

that

was

contrary

to the

conclusions

of

its own onsult nts

as

to

Dolomite’s

project:

The

consultants

hired

by

the

Planning

Board

prepared

a

New

York

1




State Environmental

Quality

Review

Act “SEQRA” “negative

declaration”

for

the

project.

Contrary to

the

consultant’s

opinion.

on

February

29.

2012.

the

Planning

Board issued a positive

declaration

under

SEORA.

The positive

declaration

required

the

completion

of

an

Environmental Impact Statement “ElS”

before

the project

could

move forward.

see

infra Ex.

HH

at 3

emphasis

added .

96.

With

its site plan

application

for a permitted

manufacturing

use

in the Industrial

District having

inexplicably

received

a

SEQRA positive

declaration,

Dolomite was

faced

with

the

prospect

of having to

complete,

at a

significant

expenditure

of

time

and money,

an

Environmental

Impact Statement

“EIS”

for the

blacktop

plant even

though

the use

of

the site for

this

purpose

was

an

expressly

permitted use.

Goslin

Proposes

Amending

the

Town’s Zoning

Law

97.

About

two weeks

later,

with Dolomite’s

site

plan

application

now

tied

up

in

what

had become

a greatly,

and

needlessly,

magnified

SEQRA

process, Goslin

now

formally

proposed

amending

the

Town

of

Ballston

zoning

law

at a

Ballston

Town

Board

meeting.

A

copy

of the

Town

Board

Meeting

Minutes

from

March

6 2012

is

attached

hereto

as

Exhibit

“M ”

98,

In

discussing

his

amendment,

Goslin specifically

referred

to

the Dolomite

site

plan

application,

and

stated

further

that

he had

attended

a

recent

Planning

Board meeting

where

some

residents

opposed

the Dolomite plant

see Ex.

M at

6 .

99.

In response

to Goslin’s

comments,

the

then-Town

Supervisor

Patty Southworth

expressed

concerns

about

Town Board discussion

of a specific

project

pending

before

the

Planning

Board

and the

Town

Board’s inappropriate

interference

with

and

influence

in the Planning

Board process

see

Ex. M at 6

[Supervisor

Southworth

noting

her

bconcerns

about

talking

about

a

specific project

that is before

the Planning

Board,”

and stating, lt

is their decision

and

it

should

19




no

t

b

e inf l

uen

ced

by

t

he B

oar

d.

T

he P

lan

nin

g

Bo

ard is w

or

kin

g

ha r

d

to d

o

wh

at

is

b

est fo

r the

T

ow

n. T

hey

ar

e g

uid

ed

by

an ex

pe r

ienc

ed

at

torn

ey

.”])

.

N

ew

spa

per Co

vera

ge

C

la

rifie

s

th

e M

otiv

e

and

ni

mu

s

M

ot

ivat

ing

t

he Go

slin

me

ndm

en

t

100

.

Af

ter the m

ee

ting

,

Go

slin

wa

s

qu

ote

d

in

a ne

ws ar

ticl

e

as

sl

atin

g th

at “th

e

Do

lom

ite

C

orp

ora

tio

n’s

asp

ha l

t

p

lan

t

p

roje

ct in O

P h

igh

ligh

ted

flaw

s

in th

e

t

own

’s

zo

nin

g

la

ws.

”

A c

opy

of

th

e M

arc

h

14

20

12

B

ail

sion

Jou

rna

l

ar

ticl

e

enti

tled “Do

lom

ite

.

Ba

llsto

n

D

eve

lop

men

t

eye

d,”

is

at

tac

hed

h

ere

to

a

s

E

xh

ibit

“N

”

101

The

article further states

that

“[ajcco rding

to

opponents, includ ing Goslin,

Dol

om

it

s

p

lan

t w

ill

not

b

e a ma

jor e

mpl

oye

r

in

th

e

re

gio

n,

w

ill adv

ers

ely i

mpa

ct an al

rea

dy

h

eav

ily

co

ng

este

d

R

ou

te 67

c

orr

idor a

nd is

sus

pec

ted

o

f b

ein

g

a

po l

lute

r”

E x

.

N).

102

Fin

ally

,

th

e ar ti

cle q

uo te

s

Go

slin

,

rea

ffirm

in

g

h

is re

pre

sent

tio

ns

th

at th

e Dol

om

ite

pl

ant wo

uld no

t be

af

fec

ted,

s

tati

ng

“‘I c

an’

t do

a

ny t

hin

g

a

bo

ut

D

ol

om

ite,’

h

e said

. ‘B

ut

ca

n

tr

y

to

p

rev

ent

thei

r

exp

ans

ion

o

r ot

her pl

ants fro

m mo

vin

g

i

n ”

Ex.

N)

emp

ha

sis

ad

ded

).

103

In

the s

ame

art

icle

,

th

en-

Tow

n

S

upe

rvi

sor

S

ou

thw

orth “[f

elt] ass

ure

d

t

he

c

om

pre

hen

siv

e

pl

an

wil

l

g

uide

th

e

tow

n’

s

de

velo

pm

ent

,”

and

tha t

th

e

“

ind

ustr

ial

zo

ne

wil

l

re

mai

n

an

d tha

t

bu

sine

sse

s wi

thin th

e zon

e sho

uld

be

al

low

ed

t

o exp

and

” s e

e

Ex

.

N

).

104 A

s to Do

lom

ite

’s

p

art

icul

ar

pro

jec

t,

M

s.

ou t

hwo

nh

sai

d Jwj

e

h

av

e

a

pro

jec

t

tha

t

mu

st go

th

rou

gh

the

proc

ess

a

s it

sta

nds

”

s

ee

E

x.

N).

D

olo

mite

R

elie

s on G

osli

n’s

Re

ass

uran

ces

105

.

A

bo

ut

a

m

ont

h late

r, Go

slin m

ove

d

to

ap

pro

ve

a

d

raft r

eso

luti

on

to

r

evis

e

the

zo

nin

g

o

rdin

anc

e

to

in

clud

e

h

is pr

opo

sed am

end

me

nts

.

A co

py

o

f th

e M

eet

ing

M

inu

tes

o

f

the M

ay

2

012

.

To

wn

Bo

ard

M

eet

ing is a

ttac

hed

her

eto

as E

xhib

it

“

”

20




106

In

the meantime

and

in

reliance

upon

the

representations of Councilman

Goslin

and the

Town

Board

that the amendments

would

not

affect its

processing

site

plan

application

Dolomite continued

to

comply

in

good

faith

with

the

ongoing

SEQRA

process that

had

been vastly

enlarged

as

the result

of

the

Planning Board’s

positive

SEQRA declaration issued contrary

to

the

conclusions

of its

own

consultants

107 On

November 28

2012

the

Planning

Board

adopted

its

final

scoping

document

for

Dolomite’s

project

The scoping

document

identified

the

reviews studies

and components

necessary

to

the

preparation

of

Dolomite’s

Draft

S A copy

of

the

ovem er

28

2012

Planning

Board Meeting

Minutes

is attached

hereto

as Exhibit

“P ”

108 In

continued

reliance upon

Goslin’s

representations

Dolomite

began and

continued

to

conduct

the

expert studies

identified

as

necessary

by

the scoping

process

109 Notably

none

of the

expert

studies

no t

one

indicated

any

adverse

environmental

impacts

from

construction

of

the

blacktop

plant within

the

CIP

110

During

a

March

26 2013

Town

Board

meeting

Goslin again

reiterated

that his

proposed

amendments

“will

not

change

anything

already

in process

The

specific language

of this

zoning

change

will keep

things

from

expanding ”

A copy

of the March

26

2013

Town

Board

Meeting

mutes

is

attached

hereto as Exhibit

“ ”

111

The very

next

month on

April 30 2013

the

Town

Board convened

a

public hearing

on Goslin’s

proposal

to

amend

the

zoning

law

112

At

the public

hearing

Dolomite

objected

to the

proposed legislation

out of

a

concern

that the

proposed

amendments

would somehow

adversely

affect us sue

plan application

which

had been

held up

in

the approval

process for

almost

two

years

despite Goslin’s

public

statements to

the contrary

21




113.

Town

Supen’isor

Patricia

Southwonh

sharply

critical

of

the legality

of the

amendment,

stated

at the public

hearing

that “

or

those

who

sat through

the

Comprehensive

Plan

process

.

this

is

spot

zoning”

and

that

“the right

way

to do

this was

to

open

up

the

Comprehensive

Plan process

and start

again.

That is the

way

legally

t should

be done.”

A

copy

of the

Town

Board

Meeting

Minutes

of April 30,

2013

and

Certified

Hearing

Transcript

of

April

30,

2013

Town

Board

Meeting

are attached

hereto

as

xhibit

“

”

114.

Two months

later,

Dolomite

submitted

its

Draft

EIS to the

Planning

Board.

A copy

of the

Draft

EIS

dated

June

27,

2013

is

attached

hereto

as xhibit“S ”

115.

The

Dolomite

Draft

EIS

contained

all

the

expert studies

required

by the

Planning

Board as necessary’

components

identified

in the scoping

process,

and

obtained

at

Dolomite’s

expense.

The expert

studies

included,

among

other

things,

evaluation

of potential

air,

transportation,

recreational

resources,

visual,

noise, odor,

public

health,

soils,

geology,

water,

vegetation

and wildlife,

cultural resources,

and

utilities

impacts

related

to construction

and

operation

of

the

blacktop

plant.

116.

The

Dolomite

Draft

EIS

concluded,

after

the

conduct

of

these

studies,

that

construction

and operation

of the

blacktop

plant

in the

CIP would

not result

in

any

adverse

environmental

impacts

see

Ex.

at

3-8 .

117.

A

month after

the

Dolomite

Draft

FIS

was submitted

to the Planning

Board,

Councilman

GosLin

again stated,

consistent

with

his March

26,

2013 statement,

that

“Dolomite’s

submitted

proposal

would

not be

affected

by

a zoning

change

now”

his proposed

zoning

amendment

would

not

affect Dolomite’s

pending

site

plan

application .

A

copy

of

the

July

29,

2013 article

from Daily

Gazeite, titled

“Town

eyes

curbs on

heavy

industry,”

quoting

Goslin’s

statements

is

attached hereto

as xhibit

“T ”

22




118.

This

statement

was

made the

day

after

the

Saratogian

ran

a newspaper

article

entitled

‘Public

hearing

on Ballston

asphalt

plant set for

Tuesday.”

A

copy

of the

July 28,

2013

article

is

attached

hereto

as

Exhibit

“U ”

The article

contains numerous statements

in

which Town

Supervisor

Patti Southworth

again

commented

upon

the

defects in

L.L . No.

3-20 13,

the

particular

attack

on

Dolomite,

as

opposed

to

industry,

was clarified,

and the

motivation

of the primary

group

spearheading

the attack

was brought

into question:

a) “Town

Supervisor Patti

Southworth said before

the

town makes

such substantial

changes, its

comprehensive

plan should

be

opened

for

review.”

b)

“Southworth

also sa id the

proposed changes

could

be

classified

as

spot

zoning,

a

rezoning

tactic

that can be

illegal.”

c)

“The

Dolomite

Group

submitted

its

initial

application

for

an asphalt

plant

to

the Town

in June

2011.

In

the

two

years

that followed, the

company

has

faced an

onslaught

of

criticism

.

d)

The

group

leading

the

charge

is

Citizens

for

a Clean

Environment and “questions

have

been raised

over who

exactly

Citizens

for a Clean

Environment

represents.”

“The

law

firm

Caffrey

and

Flower

has represented

Citizens

for

a Clean

Environment

in

letters

to

the

town

Planning

Board,

and

also the law

firm

Little

O’Connor,

which

has

represented

D.A. Collins

Construction

Co. in the past. D.A.

Collins

has an

asphalt

plant

in

Saratoga

Springs

and is

a

direct

competitor

of Dolomite.”

e)

“‘It does

set

to question

exactly

who

they’re

representing’

Southworth

said, adding

that she is

not the only

person won ring

who Citizens

for

a

Clean

Environment

represents and

if this

is

actually

turf

war

I)

David Pierce,

who started

Citizens

for

a Clean

Environment, “said

he

doesn’t

know

who

pays

for

Caffrey

and

Flower

attorney

Claudia

K.

Braymer’s services.”

Goslin

Recants

His

Statements

Regarding

the

mendment’s

Impact

upon

Dolomite’s

Proieet

119.

Two

days

after

the article

and

on

day

after

Goslin’s

July

29,

2013

statement

that

Dolomite

would

not

be

affected).

Councilman

Goslin

suddenly

“needed

to

clarify”

his

previous

statements

and

stated

that

his

legislation

could in

fact

stop

the

Dolomite

project.

A

copy

of the

23




T

ow

n

B

oar

d

Me

etin

g M

inu t

es

fr

om

Ju

ly

30

, 20

13 is a

ttac

hed

h

ere

to

as

Exh

ibi

t “

V ”

1

20. A

t

th

at

po

int

. D

olo

mit

e

h

ad

s

pen

t m

ore

th

an tw

o ye

ars se

ekin

g

app

rov

al

o

f its

blacktop plant,

an

expressly permitted

use

in

the

CIP located

in

the

Baliston

Industrial District,

a

nd

had su

bm

itte

d

hu

ndr

eds

o

f

p

age

s

of

an

aly

ses

an

d st

ud i

es

t

ha t wit

hou

t

ex

cep

tio

n

d

em

ons

trat

ed

t

ha t

co

ns t

ruc

tion

an

d

op

erat

ion

of t

he pro

po

sed

blac

kto

p plan

t w

ou ld

no t

res

ult

i

n a

ny a

dv

erse

env

iron

me

nta

l imp

act

s.

1

21.

D

olo

mi

te’s

ex

pe

nse

s for

the

con

sult

an t

s,

en

gin

eer

s,

att

orne

ys ,

s

urv

eyo

rs and o

the

r

prof

ess

ion

als

w

ho

app

ear

ed b

efor

e th

e

P

lann

ing

Boa

rd

an

d

pre

pare

d

the nec

ess

ary st

udie

s

and

e

nvi

ron

me

ntal

r

evie

w d

ocu

me

nts th

at th

e T

ow

n

d

eem

ed

nec

ess

ary

at

t

hat

p

oin

t exc

eed

ed

S8

45 ,0

00

.00

.

T

he

Pla

nn

ing Bo

ard

De

man

ds Fu

rth

er

Rev

isi

ons to

the D

raft

EI

S

in

a

Tar

get

ed

Eff

ort

t

o

D

ela

y Pr

oce

ssin

g of th

e Si

te

P

lan

pp

lica

tion

W

hi

le

No

.

3-

201

3

w

as in

P

roc

ess

12

2. A

ltho

ug

h th

e en

vir

onm

en

tal,

eng

ine

erin

g a

nd o

ther

exp

er t

s

ha

d

co

nclu

de

d

t

ha t

Dolomite’s

site plan

app lication

for the

blacktop plant would

not

result

in

any

adverse

env

iron

me

nta

l imp

act

s,

i

n

Au

gus

t

2

013 t

he P

lan

nin

g

B

oa

rd

r

equ

este

d

tha

t

ad

di t

iona

l

inf

orm

ati

on

b

e

pr

ovi

ded

a

nd

tha

t

ad

dit

ion

al

rev

isio

ns

to

the

D

raf

t

EIS

be

co

mp

lete

d.

1

23.

Dol

om

ite

co

mp

lete

d si

gni

fica

nt

w

or

k to

m

od i

fy

the

Dr

aft

EIS

in

A

ugu

st and

Se

pte

mbe

r 20

13

.

124

. Do

lom

ite

sub

mit

ted its

rev

ised

Dr

aft

EI

S

to th

e

Pla

nn i

ng Boa

rd

o

n

S

ep t

emb

er

2

4,

20

13

.

A

cop

y

of th

e rev

ise

d

D

ra

ft

E

IS d

ated

Se

pte

mb

er

2

4, 2

013

is

a

ttac

hed

he

ret

o

as

E

xh

ibit

12

5.

Pur

sua

nt

to

SE

QR

A

6

NY

CR

R

6

17

.9[a

j[21

[ii]

,

t

he

P

lan

nin

g Boa

rd ha

d thir

ty

3

0 da

ys,

or u

ntil Oct

obe

r 24

,

201

3, to

de t

erm

ine

t

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deq

uac

y

of

th

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r

esu

bm

itte

d D

raf

t

EI

S.

24




126 S

imu

ltan

eou

s

w

ith Do

lom

ite

’s

Dra

ft FIS sup

por

ting t

he

siti

ng

of

a

bla

ckt

op pla

nt

in the T

ow

n’s I

ndu

str

ial

Di

stri

ct,

i

n an

in

dus

tria

l

pa

rk

that

th

e

To

wn

ha

d

e

xpr

ess

ly iden

tif i

ed

as a

preferred loca tion

for

such

a

use,

Goslin

and the

Town Board

were

haphazardly attempting

to

ame

nd

th

e To

wn

’s Zo

nin

g

O

rdi

nan

ce, but

n

ot

i

ts

Co

mp

reh

ens

ive

P

lan

.

Th

e Tow

n

Bo

ard

’s

R

ush

ed and

ef

ec ti

ve

S

EO

R

P

roc

ess

for L

L No

.

3

-20

13

127 O

n t

he sam

e day th

at Do

lom

ite’

s Dr

aft

EIS

.

i

nco

rpo

rat i

ng

t

he re

vis

ion

s

dem

an

ded

b

y th

e

Pla

nni

ng

B

oar

d, was su

bm

itte

d, th

e

T

ow

n Bo

ard

r

eso

lved to

ad

op t

a SEQ

RA

“

con

dit

ion

neg

ativ

e

d

ecl

arat

ion

”

with re

spe

ct to

L

.L

. No

. 3-2

013

.

A

cop

y

of

t

he

C

ert

ifie

d

H

ear

ing Tra

nsc

rip t

o

f

th

e

S

ep

tem

ber

24,

201

3

Tow

n

Bo

ard

M

eet

ing is

a

ttac

hed

here

to a

s Exh

ibi

t

“X

”

128

Th

e

To

wn

B

oa

rd

ad

op

ted

the “c

ond

itio

n ne

ga ti

ve

de

clar

atio

n”

wi

tho

ut in

form

in

g

t

he pu

blic

as

to

w

hat

la

w

th

e

To

wn

B

oar

d

w

as

con

sid

erin

g or

e

ven

as

to w

hat la

w

t

he “co

ndi

tion

ed

n

ega

tive

d

ecla

rat

ion

”

ap

plie

d

see

E

x,

“Y

”

at

pp.

30

-3

1

129

The

official minutes

of

the

Town Board’s

September

24, 2013

meeting

do

not

r

efle

ct a SE

QR

“

con

diti

on

neg

ativ

e

d

ecla

rati

on” be

ing

ado

pte

d,

b

ut

r

athe

r

a

“Ne

ga t

ive

SE

QR

A

Dec

lar

atio

n.”

A

c

opy of t

he M

ee

ting

M

inu

tes o

f

S

epte

mb

er

2

4,

2

013

T

ow

n Bo

ard M

eeti

ng is

att

ach

ed

h

eret

o

as

E

xhi

bit

“Y

”

130

.

T

he

r

equ

irem

en

ts

f

or

and

e

ffec

t

o

f

a S

EQ

RA “c

ond

itio

n

n

ega

tiv

e

d

ecl

ara

tion

”

ar

e

w

hol

ly

di

stin

ct

fro

m

a

S

EQ

RA

“n

ega

tiv

e

d

ec la

rati

on

”

Se

e 6

NY

CR

R

6

17 .

7 d

a

nd 6 N

YC

RR

61

7.7

a 2

.

131

. It w

as

on

ly

afte

r the

To

wn

Bo

ard

had

vo

ted

to c

onc

lud

e

t

he SE

QR

A

pr

oce

ss

as

to

i

ts z

on in

g

a

men

dm

ent tha

t

th

e

T

ow

n B

oa

rd

in

for

med the pu

bli

c as

t

o the

s

ub s

tanc

e

of

L,L

.

N

o.

3

20

13

25




132.

The

public was

therefore

barred

from

any

meaningful

participation

in

the

process

Coslin

Forces

Zoning Amendment

to Permit

his

Preferred

Unpermitted

Uses

133.

The

Towils

actions

with respect

to other

proposed

projects in aliston

also

evidence

the Town’s

ad

hoc

amendment

of its zoning

law to

accommodate

the

whims

of its

representatives.

134.

On October

29,

2013,

the

Town

Board

passed

L.L. No.

4-2013

amending

the

Town’s

Zoning

Law

to

permit

micro distilleries

in

the

Business

Highway

District

2. A

copy

of

L.L. No.

4-2013

is

attached hereto

as

Exhibit “Z ”

135.

A

ovember

2013

article published

in

the

Sara

ogian

establishes

that L.L.

No.

4-20

3

was adopted solely

to permit a

specific

company,

High

Rock Distillery,

to

locate

a

micro-

distillery

in

the

town.

A copy

of the

November

2013

news

article

is attached

hereto as Exhibit

136.

The article

states

that ‘jt]o

bring in new

business,

the

town

has

changed

the zoning

of

a

particular

area

to

allow

a

micro-distillery

to

locate

there.”

The

article

goes on to

say

that

Councilman

Goslin

“encouraged

[High

Rock

Distillery

to

locate

in

Ballston.” despite

the

fact that

micro-distilleries

were

not

a

permitted

use

in

the Business

Highway

District

2

at the

time, and

that Goslin

believes

“this is

the

type

of

business

the town

is seeking”

see Lx.

AA).

137.

Prior

to the

adoption

of L.L.

No.

3-20

13,

at a

Town

Board meeting

on

July

30,

2013,

Goslin

i)

introduced the members

of

High Rock

Distillery,

LLC

to

the

Town

Board,

ii)

noted

that

the

proposed

location of the

distillery

would

require

a zoning

change

since

microbreweries

were

not a

permitted use in

the

area of

the

Town

desired by

High

Rock

Distilleries,

and encouraged

the

Board

to

amend

the

Town

Code

to

permit the

I-ugh

Rock

Distillery

to locate

26




in

the

town,

later

stating

that

“I think

this type

of industry

is

both

a

tourist

attraction

and

a potential

for a

reasonable-sized

business

in our

town.

Our

town

can use

the

kind

of

business

that

will

attract

people

to

our town”

see Exs.

X

and

AA .

138.

Zoning decisions

are

required

to be

made

based

on more

than

the

personal

views

and desires

of

a

single

Town

Board

member.

Dolomite’s

Challen c

to

No. 3-2013

139.

On September

24.

2013. the

same

day that

Dolomite

submitted

its

revised

Draft

EIS

to

the

Planning

Board,

the

Town

Board

adopted

Goslin’s

zoning

amendment, denominated

as

L.L. No. 3-2013,

which purported

to prohibit

“Heavy

Industrial

Uses,”

including

the

manufacture

of

blacktop,

within

the Industrial

District,

in

which

the CIP

and Dolomite’s

project

are located.

Ex. Y .

140.

Local

Law

No. 3-2013

was

adopted

despite

the fact that as

far back as

2012,

the

Town

recognized

that its

Comprehensive

Plan

needed

to be

updated,

but rather

than

taking

the

proper

steps to

revise

the

Comprehensive

Plan,

chose

to haphazardly

amend the zoning

law

in

a

concerted

effort to

stop Dolomite’s

lawful

project.

141. Under

New

York’s Municipal

Home

Rule

Law,

a local

law should

have

an

effective

date.

142.

Section

27,

Subdivision of

the Municipal Home

Rule

Law,

provides

that

notwithstanding

the

effective

date

of

any loca l

law,

a

local law shall

not

become effective before

it

is

filed in

the Office

of the

Secretary

of

State.

143.

Loca l Law

No.

3-2013 was

filed

with

the Secretan

of State on October

24,

2013.

A

copy

of

the

filed

L.L.

No.

3-20

is

attached

hereto

as Exhibit

“RB ”

27




1

44.

B

efo

re L.L

.

N

o.

3-2

01

3

e

ven

bec

am

e

ef

fec

tive

,

the Plan

nin

g

B

oar

d

sto

ppe

d

pr

oce

ssin

g

D

olo

mit

e’s si

te

pla

n app

lic

atio

n

on

the ba

sis t

hat

D

olo

mit

e’s

ho

t

m

ix pla

nt

wa

s no

longer

a

perm itted

use see Ex. DD

at

10 11

[P lanning

Board

Attorney

Pete r Reilly stat ing tha t

“w

ith

in da

ys

of

you

r sub

mit

ting

a

re

vis

ed

dr

aft

,

En

vir

onm

en

tal

Im

pac

t

S

tate

me

nt,

t

hey

pas

sed the

lo

cal

l

aw.

S

o

as a p

rac

tica

l,

i

f not

a

te

ch

nica

l leg

al

m

att

er,

th

at’

s w

hen the b

oar

d

sto

pp

ed

w

ork

ing

’]

and Ex

.

E

E at

1

8-1

9 [Re

illy

fu

rth

er stat

ing j

ust w

an

t

to

c

lari

fy

as

f

ar as t

he 30

0-s

om

e

p

lus da

ys

t

ha t

y

ou re

fer to

.

A

s

t

his boa

rd

is

w

el

l

aw

are,

a

nd

thin

k

e

ver

yon

e

e

lse

is

p

rob

abl

y we

ll

aw

are,

the

r

evi

sed

D

EI

S

w

as

dro

ppe

d off at tow

n ha

il.

th

ink

,

on

Se

pte

mb

er 24,

2

013

.

Con

seq

ue

ntly

,

tha t

wa

s the

sa

me

da

y

tha

t

t

he

tow

n

bo

ard

ado

pte

d

w

ha

t

is L

oca

l L

aw

of

2

013

,

wh

ich

e

lim

inat

ed the

pro

po s

ed

pr

oje

ct

as a

n allo

wa

ble use wi

thin

th

e

z

on

e.

So

t

hin

k

i

t’s q

uite

und

ers

tand

ab

le

and

le

gal

ly

corr

ec t

a

nd

t

he

b

oar

d

c

eas

ed its r

evi

ew .

”] .

A

cop

y

o

f

th

e tra

nsc

rip

t

fr

om the Au

gus

t 27,

201

4

P

lan

nin

g

B

oar

d

M

ee

tin

g

is

atta

che

d

h

ere

to as E

xh

ibit

“

”

A

co

py

of the

t

rans

cr i

pt

fro

m

the

Au

gus

t

27

,

20

14

Pla

nni

ng

Boa

rd

Me

etin

g

is

atta

che

d

he

reto as

E

xh

ibit

1

45

.

In

res

pon

se, Do

lom

ite

co

mm

enc

ed

a

h

ybr

id dec

lara

tor

y

jud

gme

nt

A

rti

cle

78

pr

oce

edin

g in

s

tate

co

urt seek

ing

a

judg

me

nt

d

ecla

rin

g

an

d

a

nn

ullin

g as v

oid L.L

. N

o. 3

-20

13

on

th

e gro

und

s th

at

it

wa

s

a

rbi

trar

y

an

d

cap

ric

iou

s.

di

scri

min

ato

ry,

i

n

vi

olat

ion

o

f

la

wfu

l

p

roce

du

re,

c

onf

isc

ator

y

and

ultr

a

v

ires

.

A

co

py

o

f Do

lom

ite’

s

Fir

st

A

me

nd

ed

Ver

ifie

d

o

mpl

ain

t Pe

titi

on

da t

ed

M

arc

h

21

,

201

4

is at

iac

hed

h

ere

to

as E

xh

ibit

“

EE

”

146

T

he To

wn jo

ine

d

is

sue

,

con

tes

ting

Do

lom

ite ’

s

r

igh

t

to

th

at

r

elie

f.

14

7. D

esp

ite

its

a

war

ene

ss

o

f t

he

my

riad

o

f

d

efec

ts

in

t

he law

, bo

th

bef

ore

an

d afte

r the

f

ilin

g

of D

ol

omi

te’s cha

llen

ge

on

Ja

nua

n’

22

, 2

014

,

th

e T

ow

n

refu

sed to

w

ith

draw

L.

L.

N

o. 3-

2

013

b

eca

use

to d

o s

o

wo

uld

hav

e

p

erm

itt

ed

D

olo

mit

e’s sit

e pla

n

ap

plic

atio

n,

w

hic

h

had a

t

that

28




p

oin

t b

een

pe

ndi

ng f

or

yea

rs be

fo r

e

the

P

lan

nin

g

B

oar

d,

to

pro

gre

ss .

1

48

. In

con

jun

ctio

n

wit

h

i

ts r

esp

on s

e

t

o Do

lom

ite

’s

L.

L.

N

o. 3-

201

3

cha

llen

ge ,

the T

ow

n

submitted

the

affidav it

of

Mary Beth

Hynes,

former

Town

Board member, which served

only

to

fu

rthe

r

cl

arif

y th

at the

Tow

n Bo

ard d

eci

ded

“

tha

t

“

hea

vy in

dus

try” sh

ould

n

o

lo

nge

r

b

e

pe

rm i

tted

in th

e I

ndu

stri

al

D

istr

ict

o

nly

afte

r “ap

plic

atio

ns,

”

su

ch

a

s

D

ol

om

ite’

s,

w

ere

“pe

rm

itte

d

t

o

pro

cee

d.”

A co

py of

t

he

A

ffi

dav

it

of Hy

nes

is atta

che

d

her

eto

a

s E

xh

ibit “

FF

”

14

9. M

s. H

yne

s sta

ted

, in th

e co

nte

xt

o

f

th

e To

wn’

s

th

ink

ing

wh

en it

con

sid

ere

d

th

e

C

om

pre

hen

siv

e

Pla

n

in 2

00

6, th

at:

I

t

w

as

de

cide

d by

t

he

Tow

n

B

oar

d to

w

ait

u

nti

l

a l

ate

r t

ime to d

eal

w

ith in

dus

tria

l

z

one

iss

ues

.

Th

e

de

lay

w

as n

ec

essi

tate

d

b

y t

he

n

eed

to

det

erm

ine w

ha

t

po

ssi

ble

sp

in o

ff

o

ppo

rtu

niti

es

G

lob

al Fo

un

drie

s

mi

ght p

rese

nt

t

o

the

T

ow

n

of

B

alls

ton

.

Ex, FF

, 92

1

50.

T

hus

,

not

on

ly did H

yn

es a

dm

it tha

t the B

oa

rd inte

nde

d to

eng

age

in a

d

h

oc

,

o

r

spo

t.

z

on in

g

b

y

a

dd r

ess

ing

e

ach

i

ssue

a

s

t

aro

se

rath

er

th

an i

n

fur

ther

anc

e

of co

mp

rehe

nsi

ve

pla

n for th

e T

ow

n but h

er s

tate

me

nts a

lso

e

vid

enc

e the

T

own B

oar

d’s di

spa

rate

t

rea

tme

nt

of

Do

lom

ite

as

it i

s

clea

r

th

at indu

str

ial

u

ses o

wn

ed

by

G

lob

al

Fo

und

rie

s

wo

uld b

e

acc

ep t

ab l

e

to

the

T

ow

n, wh

ile th

ose

o

wn

ed b

y

oth

ers

suc

h

as

D

olo

mit

e

wou

ld

n

ot.

1

51.

W

hil

e

the

litig

atio

n

cha

lle

ngin

g

L

.L

. No

. 3

-20

13

w

as p

end

ing be

fore

the

Sar

atog

a

Co

un

ty

S

upr

em

e C

our

t.

t

he Tow

n B

oar

d

ac

tua

lly

com

me

nce

d

the pro

ces

s

t

o

a

dop

t

an

i

den

tica

l law

L.L. No.

2-2014

in tended

to

“reenac t”

L.L.

No.

3-2013

despite

the

fact

tha t

L.L.

No.

3-2013

was

on the

oo

s an

d in

e

ffe

ct.

152

. T

ran

scr

ipts

o

f

the pu

blic

he

ar i

ngs

fo

r

L.L

.

N

o.

2-2

014

a

re

tel

ling

, be

cau

se

the

y

re

ad

as

if

L.L

.

No. 3-

201

3 nev

er oc

cur

red

,

b

eca

use

t

he

Tow

n

k

ne

w

t

he

law t

o be

d

efec

tiv

e

a

nd tha

t

it

29




would eventually

be

nullified,

even though

the

Town

was relying

upon its existence

as

grounds

to

halt processing

Dolomite’s

site

plan

application

and

forcing Dolomite

to

litigate

its

invalidity.

153.

For

example.

see

xhibit“GG ”

transcript

of

Town Board May

13,

2014

hearing

where

Town

Attorney Walsh

describes

L.L.

No,

2-20

14

as:

If may, just

to

let

even’one

know what

the proposal

here

is,

currently

there

is an

industrial-zoned area in

a

part of

trnvn we

described

within

our

public

notice

that

the

industrial

zoned

area

is

open

for all industrial

zoning.

So

anything

that

would

fit under the

industrial

uses

would

be

allowed

under our

zoning. The

Board

is

proposing

this Local

Law,

and

we

are

having

a public hearing.

Instead

of

having

it

open

to

all

industrial

uses, we

are

narrowing

down

the

proposed

uses that can

go

into

the

industrial area

to

“light

industrial.”

Ex. GG

at 9-10

emphasis

added .

154.

At

the

time

of

this

public

hearing,

L.L.

No.

3-2013,

which

had replaced

the long

standing

Industrial

District

with

a

“Light

Industrial

Zone”

had neither

been

withdrcnvn

nor

nn’ahdaied.

155.

This

was not

simply

a

misstatement

by

Town

Allomey

Walsh,

who

reiterated

the

point:

f

may,

just

to

be

clear,

the

purpose

of

this

public hearing

is

to

get

public

feedback

into,

again,

changing

from the

industrial

zoning

in the north

part

of

the

town

where it’s been

zoned industrial

to limiting

it

from

full industrial

zone

to

the

narrowing

of

“light

industrial.”

Ex. OG at

13

emphasis

added .

156.

Walsh explained

further:

What

we

did currently

under the

town

law. we

passed

it in September

of

2013,

and there

were

some conflicts,

and the

conflict

was that

we

said

that

you

could have,

you could

get by

with

certain

aspects

with

a

special

use

permit.

We

also

prohibited

under

our

list of

what

is

prohibited

in

them.

We

wanted

to

make

it cle r under

the

new,

what

we

are

doing

now,

the

light

industrial

regulations

are

30




Ex

.

G

G a

t

1

5-1

6).

157

Alt

hou

gh

w

as cl

earl

y

aw

are

,

as

ev id

enc

ed

by it

s ow

n ac

tion

s, tha

t

L.

L.

N

o. 3-

20

13 wa

s de

fec

tive

,

th

e To

wn

,

for the

pu

rpo

se

of

b

loc

kin

g

D

olo

mi

te’s l

awf

ul

a

ctio

n,

f

rivo

lou

sly

r

efus

ed to w

ithd

raw th

e law

,

a

nd f

orc

ed

th

e

Sar

ato

ga

C

oun

ty

Su

pre

me C

our

t

t

o n

ulli

fy

it

see E

x.

R

H).

158

Afte

r

e

nga

gin

g

in

liti

gat i

on

fo

r mo

re th

an five

m

ont

hs

du r

ing

wh

ich

tim

e

D

ol

om

it

s

s

ite p

lan

a

ppl

ica

tion was n

ot pro

ces

sed by

the Pla

nni

ng Boa

rd

on Ju

ly 3 2

014

,

th

e

Saratoga County

Supreme

Court

nullified

and

invalidated

L.L. No. 3-20

13

A

copy

of

the

July

3,

20

14

D

ec

isio

n

an

d

u

dgm

en

t

is

atta

che

d

h

ere

to

as

E

xh

ibit

“H

H ”

Pos

t L

E

No

.

3

201

3 N

ull

ific

atio

n

Tre

atm

ent

o

f

o

lom

ite

’s

Pl

ann

ing

Bo

ard A

ppl

icat

ion

159 As

it ha

d

pr

ior

to

t

he

n

ull

ific

at io

n

o

f

L

.L.

N

o. 3

-20

13 ,

th

e

T

ow

n

B

oar

d

co

nt in

ued

its

eff

or t

s

to

ad

opt

in

L.

L.

No. 2-2

014

w

hi

ch,

as e

xpl

aine

d

b

y th

e

T

ow

n

a

tto

rney

.

s

up

ra w

as

in

tend

ed to be

a

m

ino

r im

age

o

f

th

e nu

llifi

ed

2

013

a

me

ndm

en

t.

160

No

w

u

nde

rsta

nd

ing

th

e

To

wn

’s in

ten

tion

s

a

nd imm

ed

iate

ly

up

on th

e nu l

lif ic

at i

on

of

L,

L. No

. 3-2

013

.

D

olo

mit

e

re

que

ste

d

th

at th

e

Pla

nn i

ng

B

oar

d res

um

e

pro

cess

ing its s

ite

p

lan

ap

pli

cati

on , ac

cep

t the D

raft EI

S

as

co

mp

lete

, and

c

omm

en

ce

the

p

ubl

ic com

me

nt

pe

rio

d. A

c

opy

of D

olo

mit

e’s Ju

ly 9

20

14 cor

resp

ond

en

ce

is at

tach

ed

h

ere

to

as Ex

hib

it “II

”

161

At

the July

30,

2014

Planning

Board

Meeting, howeve r,

the

Planning

Board

refused

t

o

acc

ept

th

e Dra

ft

EIS a

s

c

om

plet

e

an

d in

stea

d

ad

vis

ed

D

ol

omi

te tha

t

it

wa

s tak

ing

a

n ad

diti

ona

l

tw

en

ty

2

0)

day

s to

re

view

th

e

D

ra

ft EI

S

a

nd pr

ovid

e com

me

nts

be

for

e

is

suin

g

a

de

tenn

ina

tion

see

E

x. “

CC

”).

31




162.

B

y

th

is

p

oin

t,

the Pla

nn i

ng B

oar

d

h

ad h

ad

D

olo

mite

’s

late

st

DE

IS

for

m

or

e

t

han

thre

e

h

und

red

30

0 d

ays

.

inc

ludi

ng

thi

rty

30

da

ys

wh

en

L

.L.

o 3-

20

w

as not yet

ef

fec

tive

but the

Planning

Board

inexplicably stopped processing Dolomite’s

site

plan

application

see

Ex .

CC

at 1

0 l

i .

163

The Pl

ann

ing Bo

ard h

ad

a

lso h

ad

a

fu

rthe

r

tw

en t

y-o

ne

21

day

s from the tim

e

Do

lom

ite

r

equ

est

ed

to be p

lac

ed on th

e

Pla

nn in

g

Boa

rd’

s age

nda

un

til

the

J

uly

30

th

m

eet

ing

,

y

et

eve

n

w

ith

a

ll th

is ti

me

,

the P

lan

ning B

oar

d

too

k no a

ctio

n on D

olo

mi

te’s

s

ite

pl

an ap

pl ic

atio

n

du

ring

tha t

tim

e.

1

64

, Du

ring

th

at s

ame

me

etin

g,

an

d ap

pa r

en tl

y

con

cer

ned on

ly wi

th

p

ut ti

ng the br

ake

s

on

ol

om i

te ’s pro

ject at

an

y

co

st, one

o

f

th

e Plan

nin

g

Bo

ard

m

emb

ers

ina

pp r

op r

iate

ly

as

ked

Do

lom

ite

whe

the

r

an

ap

pea

l

by

the T

ow

n o

f

the C

ou

rt’s de

cis

ion nu ll

ify

ing LL.

N

o. 3-2

0

13

w

ou

ld st

ay the

Pla

nn

ing

Bo

ard

’s ab

ility to co

ntin

ue

pr

oce

ssin

g

D

olo

mit

e’s

si

te plan

ap

pl ic

at io

n.

se

e E

x.

CC

at

14 .

165.

On

August

20,

2014,

Dolomite received

comments

from

t

Male

regarding

the

com

pl

eten

ess of t

he Dr

aft E

IS

,

w

hic

h

co

uld

on

ly

be

cha

ract

eriz

ed

as

r

equ

es ts

fo

r

tie

m

ini

ni ls

rev

isio

ns

to

the

Dra

ft

E

IS, req

ues

ting s

uch

i

tem

s as i

d

elet

ing

t

he

“I

Vi

sua

l

imp

act

s

A

na

lysi

sj

f

rom

th

e

T

able

of Con

ten

ts

a

lon

g wi

th

th

e men

tio

n th

at

t

his A

ppe

nd i

x

ha

s be

en

d

elet

ed fr

om the

D

EIS

;” and

ii ad

din

g ni

ne “

ac r

ony

ms

t

o t

he l

ist o

f ab

brev

ia t

ion

s.

A ful

l c

opy o

f

th

e

co r

res

pon

den

ce fro

m

CT

.

M

ale is

at

tach

ed her

eto

as

E

xh

ibit

“JJ

.”

166. D

olom

ite

pro

vid

ed

re

spo

nse

s

to

tho

se

tie m

ini

rnis com

me

nts

o

n

Aug

us t

2

6,

20

14.

A co

py

of

Dol

om

ite’

s

Au

gu s

t

26,

20

14

co

rres

po

nde

nce is

a

ttac

he

d

h

ere

to

as

E

xh

ibit

“

KK

”

res

pon

din

g

t

hat

“ w

ihi

le

the let

ter i

tsel

f

stat

es th

at

i

ts pu

rpo

se

is

fo

r a

c

omp

let

ene

ss

r

ev i

ew ,

th

e

com

me

nts

con

ta in

ed

w

ith

in

th

e l

ette

r

do

no

t

ap

pe

ar

to

be

ba

sed

u

pon

a

co

mpa

ris

on

o

f

th

e

co

nte

nt

32




of the

Draft

Environmental

Impact

Statement

DEIS

and

the

final

scoping

document .

167.

On August

27,

2014, Dolomite

again

appeared before

the Planning

Board

and

requested

that

the

Planning

Board

accept

the

Draft

EIS

as

complete

and

commence

the

public

comment

period

see

Ex.

“DD” .

168. During

the

August

27, 2014

meeting, Dolomite

provided

testimony

responding to

each of T

Male’s

comments

and

the

lack

of a

basis

from which

to determine

the Draft

EIS

incomplete,

stating

that:

But

the

only comments

in the

T Male letter

is a request

to

delete

an

appendix

and- that’s

number

one.

umber

two

is

a

request

to

add

six or

seven

additional abbreviations

.

. That

is simply

a

ministerial

comment.

It

does not have anything

to

do

with

completeness.

The

Ithirdj

comment from

T

Male

is

in regard to

water

resources

or wetlands

and

asks

for a discussion

or a distinction

of

what

are

called

jurisdictional

wetlands

from

nonjurisdictional

wetlands.

And

that

can

certainly be provided.

The

explanation is

actually

in

our response.

But,

again, that’s

a substantive

comment

regarding the

content

of

the

EIS.

It

has

nothing to

do

with the

completeness.

The completeness

determination

is

you compare

the

what

has

been

provided

to

what

was

to

what the

written

scope

was.

The written

scope

asked

us

to address wetlands.

We

did

so.

t

Male is

now

asking

for a

little

bit

of

clarification

on

that

issue,

which

we are

happy

to

provide,

but it’s not

a basis to

not

determine

the

EIS

complete

and to

allow public

review.

umberfour

in their

letter is simply

a

discussion

of

various

air

quality

regulations

and is

again,

is a ministerial

comment

that

wouldn’t

provide

the basis

to

not declare

determine,

[j

the

EIS

to

be

complete.

And then

the fifth

comment

is

simply

to

change

the word

“department’

to

“NYSDEC.”

Again, simply

ministerial

comment.

see

Ex.

DD at

10-12 .

169.

To

demonstrate

the lack

of

basis

for determining

the

Draft

EIS

as

incomplete

Dolomite

quoted

language

from

the SEQR handbook

discussing

the purpose

of the

EIS. the

basis

33




for

etermining

the

adequacy

o

the Draft

EIS, and the number o times a

lead agency may

request

a revision

o

the

EIS.

Now, according

to

DEC

and the

SEQR handbook,

the

question is,

“What

is an EIS” “What should

an

EIS

contain?”

And

this is

a

quote

from

page 118 o the SEQR

handbook;

“The EIS,

therefore,

needs to contain

sufficient descriptions

o the

proposed

action

and

its setting to provide appropriate

context

for

a

reader to understand

the analyses

o impacts, alternatives,

and

mitigation but should

not be

encyclopedic or overly

or

an

overly

technical document.”

On

page 133 o [the] DEC

SEQR

handbook, the

question

is

raised,

“What is the

basis

for

determining

the

adequacy

o

the draft

EIS?”

And

it

says, “The lead

agency should ensure that

all

relevant

information

has been presented and

analyzed

but

should

neither

expect

nor require

a

‘perfect’ or exhaustive

document,

A

draft EIS

that is adequate to be

accepted

for

public

review

should

describe the

proposed action,

alternatives to

the action, and

various

means o

mitigating impacts

o the action.

The draft

£15

should

identify

and

discuss

all significant

environmental

impact issues related to

the action; however,

the draft

ElS

will

not

necessarily

provide

a

final

resolution

o any o the

issues.”

And

finally,

also

what

informs

the

discussion tonight on

page

134

o

the SEQR

handbook, there’s

a

question,

“Is

there

a

limit

on

the

number

o

times a lead

agency

may

reject

a

submitted

draft

EIS?”

ow

C.T.

Male

is

encouraging

this

board

to

reject it yet

again.

And th is

is what

[the] SEQR handbook says;

“The goal o the lead

agency

in its

review o the

submitted

draft

EIS

should

be to

advance

the

review o

the proposed project to

the

public review

phase;

therefore,

a lead

agency

should provide

sufficient

guidance

in

the

initial

description o deficiencies

to enable

the

project sponsor

to

develop

an

acceptable draft EIS

with

one

revision effort

and

only reject a

resubmission that resubmitted

draft

EIS still

contains

errors or

omissions which

are

essential

to

the

public’s

understanding

o the proposed

project.”

see

fix.

DD at

12-15 .

70.

One Town

Planning

Board member even

agreed with Dolomite

that

the comments

were

minor

in

nature and

asked the

Planning Board Chairman to move its

site plan

application

34




along

see

Ex.

FE

at

26-27

[Board

member

Hayden

stating

that

“

think

it’s

as complete

as

it’s

going

to

get, so

would be

willing

to

say

it’s

complete

and

move forward.

think

the comments

are

kind

of

minor,

technical

in

nature,

and

think,

you know,

we had

you

know,

let

the public

review it,

comment

on

it,

and

then, you

know, get

this

thing moving

forward

one

way or the

other.”]).

171.

Despite

Dolomite’s

evidence

that

there

was no

basis

under

SEQR to

declare

the

Draft

ElS

incomplete,

at

its

August 27,

2014 meeting

the Planning

Board once

again

refused

to

accept

the Draft

EIS

as

complete

and

demanded

more

time

to

review the

site plan

application.

172. In

the

meantime,

the Town

Board

was preparing

its

record to

support

the

upcoming

adoption

of LL

No.

2-2014,

including

the

Town

Attorney

ensuring that correspondence

from the

law firm

representing the

mysteriously

funded

opposition group

see, Exhibit

V)

Citizens

for a

Clean

Environment be

included

in

the

records

of

the

Town.

A

copy

of the Meeting

Minutes

of the

September

11 2014

Town Board

Meeting

is

attached

hereto

as

Exhibit

“LL ”

173.

Finally,

on

September

24,

2014,

a

year

to

the

day since

the

Planning

Board first

received

the

revised Draft

EIS

and more

than three

3) years

after

Dolomite’s

application

was

submitted,

the

Planning Board

accepted

Dolomit s

Draft

EIS as complete

and set

a

date of

October

30,

2014

for the

public hearing.

A copy

of

the transcript

from the

September

24,

2014

Planning

Board

Meeting

is

attached

hereto

as Exhibit

“MM ”

174.

This

schedule

was

very

convenient

for

the

Town.

175.

Six

days

later,

on September

30,

2014, the

Town

Board

adopted

L.L.

No.

2-2014.

a

mirror

image

of

L.L. No.

3-2013

which

had just

been

nullified.

see

Ex.

NN

at

41).

A copy

of

the

transcript

from the

September

30,

2014

Town

Board

Meeting

is attached

hereto as Exhibit

“NN.

35




olomite’sChallen2e

to L L

No. 2 2014

176.

The

next

day knowing

that the

hastily published

public

notice for

L.L.

No.

2 2014

was fatally flawed

in

that

pretended that

L.L. No.

3 2013

had

never

been

in

existence Dolomite

commenced

a

combined

declaratory

judgment

action

and

Article

78 proceeding

via

order

to

show

cause.

challenging

the

enactment

of L.L.

iSo.

2 20

14

and

requesting the

Saratoga

County

Supreme

Court

enjoin

the

Town

from

enforcing

or

applying

L.L. No

2 2014 to Dolomite’s

processing

project.

177.

At a hearing

on

October 2

2014 Judge

Ann

C. Crowell

signed

the Order to

Show

Cause but

refused to

issue

a temporary

restraining

order

on the

grounds that

Dolomite’s

harm

was

speculative

because

the

Planning

Board

was stil l

processing Dolomite’s

site

plan

application.

178.

Within

days

of

Judge

Crowell’s

Order

the

Planning Board

canceled

the

public

hearing for

Dolomite’s

site plan

application

once

again

stopping

the

review

process. A

copy of

the

letter

from

the

Planning

Board

Attorney

Peter E.

Reilly Esq. to

Adam

Schultz

Esq.

stating

the

public

hearing

had

been

cancelled

is

attached

hereto

as

Exhibit

“ ”

A

copy

of

the

letter

from

Planning

Board

Chairman

Richard

Doyle

advising

that

the public

hearing

had

been cancelled

is

attached

hereto as

Exhibit “PP ”

A copy

of the

Town of

Ballston webpage

on which

the town

alert of

the public

hearing

cancellation

was

posted

is

attached

hereto

as

Exhibit

“QQ.”

179.

As

a result

of

the

Planning

Board’s actions

on

October

20 2014

Dolomite

filed

a

Motion

to

Renew

with the

Saratoga County

Supreme

Court

again

seeking

a temporary

restraining

order

against

the

Town.

A

copy

of the

Motion to

Renew

is

attached

hereto as Exhibit

“ W ”

180.

The Town’s

sole response to the

Motion to Renew

consisted

of a memorandum

of

law—replete

with

inaccurate

facts

and references

to unrelated parties

and

exhibits

bearing no

cognizable

relationship to

the motion—alleging

that dismissal

was warranted

for

failure to include

36




necessary

parties.

A copy

of the

Town’s

memorandum

of law

is attached

hereto

as Exhibit

“SS ”

181.

On November

13,

2014,

Judge Crowell

issued an

Order

enjoining

the

Town from

enforcing

or

applying

L.L. No.

2-2014

to

Dolomite’s

site

plan

application.

A

copy

of

the

November

13,

2014

Order

is attached

hereto as

Exhibit “TT ”

182.

The

November

13,

2014

Decision

and Order

held

that:

From

the

date of

this

Order

until

further

Order of

this Court

and

pending

the

determination

of

Petitioner’s

request

for

a

Preliminary

Injunction,

Defendants Respondents

and

all other persons and

entities,

known

or

unknown,

acting

under

them,

including

their

delegated

boards,

and

their

successors in

either

their

elected

or

appointed capacities are hereby enjoined

from

enforcing

or

applying

L.L. No.

2-20 14 to

Plaintiff-Petitioner’s

application

to construct

its

proposed

asphalt

plant

in the

Curtis

Industrial

Park in

the Town

of

Ballston.

which

processing

shall continue

unabated and unaffected

by

L.L.

No.

2-2014

as

of

the

date

of

this

Order.

Ex.

TT .

The

Town’s

Disparate

Treatment

of

Dolomite as an

Improvement

in the

CIP

183.

Recognizing

the time

and

expense

of

litigation,

as

well

as

the

merry-go-round

nature of having

to challenge

and

nullif’

the Town’s

illegal enactments in

order

to

move

its

application

forward

only

to

have

the

Town

enact the

next

roadblock,

Dolomite

sought

an

alternative

avenue

of relief.

184.

On April 5,

2012,

the

Town had

issued

a

statement

that

the

uses

in

the

CIP

were

not

actually

uses,

as

that

term is commonly

understood

in the context of

zoning

and planning,

but

were,

rather

“improvements,”

effectively

treating

the

CIP

as a

PDD.

A

copy

of

the

April 5 2012

letter

is

attached

as Exhibit

“UU ”

185.

The Town’s

April

5,

2012

letter further stated

subdivision

was

not necessary

for

either

the

CIP

or

for

Dolomite’s

hot

mix plant because

the

plant,

as

with every

other

use

in

the

37




CIP,

is

not a use, but,

rather,

an improvement Ex.

VU .

186.

Once its

site plan

application

had been

halted

by

the adoption

of the

ill-fated

L.L.

No.

3-2013, Dolomite sought

to

proceed under

the

Town’s

April

5.

2012

determin tion

contending

that its plant

was

an

improvement,

as

opposed

to a use, and

that

Local

Law

No. 3-2013,

which

amended

the

list

of

permitted

uses,

did

not

and

could

not apply

to

the Dolomite

application

to site

an

improvement.

A

copy

of

Dolomite’s

March

24,

2014

correspondence

is

attached

hereto

as

Exhibit

“VV ”

187.

The

Town Planning

Board

responded

by stating

that

the

improvement

analysis

applied

only

to the question

of

the applicability of

subdivision law, and that

all “uses”

in the CIP

must

be permitted

and appear

in

the use table

contained

in the Zoning

Law. A

copy of

the April

2 2014

letter

from Planning

Board

attorney

Peter

E.

Reilly, Esq.

to Adam

Schultz,

Esq. is

attached

hereto

as

Exhibit

“WW ”

188.

Dolomite

appealed to

the Town’s

Zoning

Board

of

Appeals from Planning

Board’s

determination

that

businesses already established

in

the CIP

were “improvements”

and

therefore

were

not required

to be

“permitted

uses”

while the Dolomite

proposal

was

not

permitted

“u

under

the

yet

to be

invalidated L.L.

No. 3-20 13.

189.

As established

by

testimony

at the

Zoning

Board

of

Appeals July

2 2014

hearing,

Dolomite sought

to

proceed

under

the

Town’s

April

5,

2012

determination,

that

the plant

was an

improvement,

as

opposed

to a

use,

and

that Local

Law No.

3-2013,

which

amended

the

list of

permitted

uses,

did

not and

could

not

apply

to

the

Dolomite

application

to

site

an

improvement.

A

copy

of

the

transcript

from

the

public

hearing,

with

the

exhibits

thereto,

is

attached

hereto

as

Exhibit

“XX ”

190.

The

Planning

Board

responded

by

stating

that

the improvement

analysis

applied

38




only to

the

question

of the

applicability

of

subdivision

law,

and that

all “uses”

in

the

CIP

must

be

permitted

and

appear in the

use

table

contained

in the Zoning

Law.

Ex . XX at

12).

191.

Dolomite

explained,

via

testimony,

that

the

Town’s analyses

as

to

businesses within

the

CIP

were

directly

conflicted

and

unsupportable.

The s tance that

the CIP is

a

use and

the

businesses within

the CIP were improvements

and therefore exempted

from subdivision

regulations,

was and

is irreconcilable

with the diametrically

opposed

determination

that what

was

treated as an

improvement

in

2012 mus t now

be treated

as a “use.”

Ex .

XX

at

12-13).

192.

Upon information

and

belie

there

are

businesses in

the

CIP that

do

not appear

on

the list

of

permitted

uses

contained

in

the Zoning

Law.

193.

These

businesses

include

i)

P M

Construction,

located

in Building 25A,

who are

general contractors,

construction

remodeling

services;

ii)

ST Services,

located in Building 28C,

who

are

home

builders;

iii) Malone

Refuse,

a

demolition

contractor

located in

Building 45,

Dempsey’s Auto,

an auto

repair

service

center

located

in

Building

31A, Guster’s

Autobody,

a

car

and

auto repair ,

customizing

and

restoration center

located

in

Building

28B;

iv)

Vintage

Motorspods

an auto

body

repair

shop located

in

Building

25C; v)

Northern

Clearing,

a right of

way

clearing

contractor

located

in

Building 5;

and

vi)

Precision

Environmental

Services,

a

hydrogeological engineering

and

contracting services

firm

located in Building 38.

194.

Dolomite

testified ftwther

that

if

each

business within

the

CIP was a use,

as

opposed

to

an

improvement,

the Zoning

Law was

clearly

being

violated in that

the CJP

is

single

parcel,

which

was never subdivided

and

the

Zoning

Law

clearly

constrains

the

number

of uses on

a

single

parcel

to a single use.

Ex. XX

at

14).

195.

Moreover,

if

in

fact the

improvements

in the

UP are uses,

then

the Town’s

subdivision

of land laws apply,

and

state

and

Town

major subdivision

requirements

relating

to

39




roads,

sewers

and environmental

review

had

not been complied

with.

Ex.

XX

at

14).

196.

On

the

other

hand,

if the

uses are improvements,

within

the principal

use

of

an

industrial

park, then

the Planning Board would

be

required

to

continue processing Dolomite’s

application,

as

Local

Law No. 3-2013

could

not affect

an improvement.

E

XX

at 15).

197.

If the

CIP

was within

a

constructive

PDD,

then

the

conflict would

be

solved,

because

multiple

uses

would

be

permissible

on

the single-parcel

CIP

without

subdivision,

and

the

processing

of

Dolomite’s

application

would continue

as

the

p rmitt

uses

for that

PDD

at the

time of its

creation permitted

hot

mix plants.

Ex. XX at

16).

198.

In considering

the

matter,

one member

of the

ZBA,

who

had been on

the

ZBA for

more

than 20

years.

stated

that the

ZBA “don’t

get

involved with

the applications

themselves

from

the Curtis

Industrial

Park,

because,

for

the

most

part,

t requires

site

plan

review

and

that’s

the

privilege

of

the Planning

Board.”

Ex.

XX

at

21).

199.

The ZBA

Chairman

Michael

Lesniak

indicated

that he

had improperly

made

his

decision

in

UdVU ICL’

of

the

hearing

on

the

mailer,

stating

that

the

ZBA’s Determination

on

the

question

was “strictly

the

interpretation

that

saw

and

planned

it over

with

the board

and

they

tended to

agree

with

that

interpretation,

too.”

Ex . XX

at 24).

200.

At the next

meeting

of

the ZBA.

the

ZBA

read

its

resolution

containing

its findings

into the

record,

and

the

resolution

was

passed

5-1,

A copy

of

the transcript of the

August

6, 2014

meeting

is attached

hereto

as

xhibit

“YY ”

201.

The ZBA made the

following

findings

on

the

record

the

“Determination”):

Number

one, the

Curtis

Industrial

Park is a single

parcel, consists

of

several

leasehold

parcels

containing

businesses

whose

activity

within

the

Industrial

Zoning

District

were

permitted

uses under

the

Town of

Ballston

Zoning

Ordinance

at the

time of their

approval.

Two,

although

subdivision

approval

is not

required

for the

40




businesses

seeking to

locale

within

the

Curtis

Industrial

Park. the

activities

conducted

by

such

businesses

must

be permitted

uses

under

the ordinance.

Three,

Thomas

Johnson’s

April 5th,

2012, letter

is consistent

with

the

ordinance

as

it

was

limited

to the

issue

of

whether

subdivision

approval

was

necessary

for businesses

seeking

to

locate

within

the

Curtis

Industrial

Park.

Four, Local

Law

3-2013, upon

filing

with the

New

York

State

secretary

of state on

October

24th,

2013,

terminated the

planning

board’s

jurisdiction

to

process

Dolomite’s

application.

As

such,

local law

removed

Dolomite’s

intended

use

as

an allowed

use

in

the

industrial

zoning

district.

Ex

.YY at

5-6 .

202.

When asked

by

Dolomite’s

counsel

whether

it

was the Town ZBA’s

position that

“the

businesses

in the

Curtis

Industrial Part

are

not

uses separate

and

apart from

the

Curtis

Industrial

Park,”

the

ZBA

responded

in

contradictory

fashion,

that it

w s the ZBA’s

po

s t o

[thatj

there

are

uses separate

and apart,”

that every business is a

separate

use

that the “use

is

the

industrial

park; anything

can

go

in

there.”

Ex. YY

at 8-9 .

203.

The

Town

ZBA

and

Planning

Board’s

comments,

coupled with

the

Town’s

adoption

of the defective

L,L. Nos.

3-2013

and

2-2014

as described

hifr

evidence

the Town’s

selective

and

arbitrary application

and

enforcement

of its land

use laws as to

Dolomite’s

project.

204.

The ZBA

proceeding

is

demonstrable

evidence

of

everything

that

the Town

has

done

wrong with

Dolomite’s

project;

it

has tied

itself

in knots

and expended

untold

sums

of

taxpayer

money

all in an

effort

to impermissibly

discriminate

against

Dolomite’s

lawful use.

205.

While members

of

the

Town

Board

may

be

p rson lly

opposed

to

Dolomite’s

project,

the

law requires

that

legal means be used

for such

opposition.

206.

Defendants

have

not

used

such

means and

should be

held

responsible

for

their

destructive

actions.

41




FIRST CAUSE

OF ACTION

U.S.

Constitution

Fourteenth

Amendment

42 U.S.C.

1983

Substantive

Due

Process

as to

Town Defendants

207. Plaintiff

repeats

and

realleges

each

and

every

allegation

contained

in

Paragraphs

“1” through

“206”

as

if fully

set

forth

herein.

208. The Due

Process

Clause

of the Fourteenth

Amendment

to

the United

States

Constitution

provides

in pertinent party

that

no

state

shall

“deprive

any person

of life liberty

or

property

without

due

process

of

law.”

209.

Section

1983

authorizes

civil suits

for

equitable

relief

and

money

damages against

government

officials

acting

under

the

color

of government

authority

who subject

individuals

to

“deprivation[sJ

of

any rights privileges

or immunities

secured

by

the Constitution

and laws.”

42

U.S.C.

1983.

210.

Dolomite

has a

valid

property

interest

which

is

entitled

to

Constitutional

protection.

211.

The

deprivation

of Dolomite’s

valid

property

interest by Town

Defendants

was so

outrageously

arbitrary as

to

be a

gross abuse

of

governmental

authority.

212.

Town Delèndants’

conduct

is also maliciously

and

improperly

motivated

as

set

lbrth

in

Dolomite’s equal

protection

claim in/ru

and

other

claims for

relief.

213.

The governmental

actions

alleged in

this

Complaint

by

the Town

Defendants

were

outr geously

arbitrary

and made wholly without

legal justification.

214. The

Town

Defendants’

repetitive efforts

to

haphazardly legislate Dolomite’s

particular

and lawful

use

out

of town without

reference

to its

Comprehensive Plan

while

other

businesses

in discrete

areas

of the

Town were

being

rezoned

for p rti ul r

preferred

uses

while

the Planning

Board

participated

in

the Town’s

frivolous

delaying

tactics and

the

Zoning

Board of

42




Appeals

condoned those

tactics

by

arbitrarily

and

capriciously

treating

the Dolomite

project

differently

from

every

other

business

in

the CIP was

designed

solely

to prevent

the completion

of


in

the Town.

215. Town

Defendants’

actions

were

taken

with

the

intent

of impacting

Dolomite

individually

by

arbitrarily delaying

and preventing

its

project

without

regard

to the

community

as

a whole

216.

Town

Defendants’

actions

in adopting

L.L.

No.

3 2013

and 2 2014

were

undertaken

based

on factors

relating to

and calculated

to inflict

harm

upon

Dolomite’s

project

rather than

pr p r

policy

or

community

implications.

217.

Town

Defendants’

activities

have been

aimed solely

at unlawfully

and

depriving

Dolomite

of its achievement

of vested

rights in its

asphalt

plant project.

218.

Under New

York

law

the

actions

of

Town Defendants

in willfully

delaying

misleading

and

hindering

Dolomite

have

resulted

in

Town

Defendants

being estopped

from

claiming that Dolomite

does

not

have

vested rights

in

its

asphalt plant

project.

219.

Town

Defendants’

bad

faith

and

malicious

delay

and

hindrance

of Dolomite’s

site

plan

application

has

resulted in

a estoppel which

constitutes

a legitimate

claim

of

entitlement

for

purposes

of

substantive

due

process.

220.

Town Defendants’

actions surrounding

L.L.

Nos. 3 2013

and 2 2014 were

shocking.

abusive

and

completely

arbitrary

where

Defendants

knowingly

and

maliciously

failed

to follow

simple

procedures required

by

their

state and

local

laws

to enact

local

legislation

in

an

effort

to

unlawfully

prevent

Dolomite’s

right

to construct its

plant.

221. Since

June 6 2 11

Dolomite

has

taken

significant

specific

acts

demonstrating

its

intent

to

construct its

lawful

asphalt plant

including

engaging in

the

Town

of Ballston

site plan

43




approval process for

its

lawful

project

for

over

four years.

222.

Dolomite

has

spen t well over

845,000

in engineering

and

environmental

expert

fees,

studies, reviews

and

application

filing

fees, as

part

of

this

process

at

the

requirement

of

the

Town

Defendants.

223. In

addition

to

considerable

time

and effort, Dolomite

has

also expended

substantial

funds

for

consulting

and

attorneys’

fees in pursuit

of

its site

plan

application.

224.

Town Defendants

have deprived

Dolomite

of the

benefit of its property

rights

and

have caused Dolomite

to suffer,

and to continue

to suffer. irreparable

harm, damage and

injury.

225.

Dolomite is

entitled

to compensatory

damages

against Defendants,

for

its

out of

pocket

expenses

and

lost

profits

associated

with

the asphalt

plant, as

well

as

interest, its

reasonable

attorneys’

fees,

and

costs.

SECOND

CAUSE

OF

ACTION

U.S.

Constitution

Fourteenth Amendment

42 U.S.C.

1983

Substantive

ueProcess in Individual

Capacity

226.

Plaintiff repeats

and

realleges

each and every allegation

contained

in

Paragraphs

“1” through

“225” as if

fully

set

forth

herein.

227.

Goslin

acted outside

of the scope of his

authority

and violated

olomite’s

substantive

due

process rights

under the

United

States

Constitution.

228.

Goslin

acted outside

of th e scope of his

authority, influencing

the

Planning

Board

to

improperly

and

arbitrarily

delay

Dolomite’s

site

plan

application

in

order

to

permit

the

hurried

and

improper

enactment

of L.L.

No.

3-2013, with

the

sole goal and

intent of

preventing

olomite

from

vesting

rights to its

lawful

project.

229.

Upon

information

and

beliel

Goslin

and

o ther Town Board members

conspired

44




with

one

of Dolomite’s

competitors

to

prevent

Dolomite

from

locating

its

hot xasphalt

plant in

the

Curtis

Industrial

Park

and

entering

the

Ballston-Saratoga,

New

York

market

for asphalt

products.

230. Upon information

and

belief.

Goslin

was

aware

that

Citizens

for a Clean

nvironment

was being

funded

by

one of Dolomite’s

competitors

and conspired

with

Citizens

for

a

Clean

nvironment

to

prevent

Dolomite

from

locating

its

ho t

mix asphalt

plant in the Curtis

Industrial Park

and

entering

the

Baliston-Saratoga,

New

York market

for asphalt

products.

231. Upon information

and beliei

Goslin’s actions

were no t

related

to any

legitimate

governmental

interest

and

had the

elThct

and/or

intent

to

reduce

competition in a

cost sensitive

market

see paragraphs

36-43,

supra

benefit

third-party competitor

of Dolomite

and artilicially

inflate

the price

of asphalt purchased

by the

Town, its

businesses

and its residents.

232. Goslin

used the

prevention

of the Dolomite

project as

a political

platform in

his

election.

233. Goslin made

explicit

and

implicit promises

that

ifelected

he

would

interfere

in

the

administrative

review

of

the

Dolomite

project.

234. Using

the

imprimatur

of

his

office,

Goslin

interfered

in the

administrative

review

of the

Dolomite

project.

235.

During

the

pendency

of the

Dolomite

site

plan

application

at the

Planning

Board,

Goslin’s

improper

motivation

was

clearly

expressed

in

his

campaign

flyer

for a

Town

Board

position

stating “[Ijike

most

of you,

we

are

opposed

to

the

Asphalt

plant. We

will

vote

NO

on any

proposal

for

an Asphalt

plant

[sjo close to

ou r

residents ”

236.

As a

member

of the

Town Board.

Goslin

could

not

have the authority

to

approve

or

disapprove

of

Dolomite’s

site

plan

application

and

could have

no

proper

“vote” on

the

45




application;

that

power rests

with

the

Planning

Board.

237. Goslin’s

actions on

the Town Board

were shocking

and

motivated

by

his

political

anirnus.

238.

Goslin.

without contacting

Dolomite,

but

referencing

the Dolomite site

plan

application,

stated that he wanted

to change

the

Town’s

zoning

see Ex.

“I”).

239.

On

ebmarv

18,

2012.

Goslin,

an

acting

Town

Board member, published

an article

in

the Daily

Gazette, the

official Town newspaper , titled

“Zoning

should

never

allow

an

asphalt

plant

in

Ballston

Lake.” see Ex.

“J”).

240. On February

29,

2012,

less than

two weeks

after the article ran,

and

after Goslin

publicly

stated that he

wanted

to

change

the zoning

law , the Planning

Board

arbitrary

issued

a

Positive

Declaration

for Dolomite’s

site

plan

application

under

SEQRA, rather than

the negative

declaration

recommended by

the Town’s

own

experts

see

Ex. “FIN”

at 3).

241.

Goslin’s

actions were

motivated

by his

expressed

intent

to hinder,

delay

and

interfere

with

the

approval

of

Dolomite’s

project,

and

those actions influenced

the

Planning

Board

as to

the review of

Dolomite’s

site plan

application.

242.

On March

6 2 12 during

the period

where Goslin

knew that

Dolomit s

site plan

application

was tied up

with

additional

SEQRA requirements,

Goslin

proposed

amending

the

Town

of Ballston

zoning law

see Ex.

“M”).

243. In fac t, during

this same

March 6 2 12

meeting

on the proposed law,

ouncilman

Goslin specifically referred

to

the

Dolomite

site plan

application

and

stated

that he

had personally

attended

a recent

Planning

Board

meeting

where

residents opposed

the

Dolomite plant see

Ex.

244.

The

Town

Supervisor

expressed

her concern that Councilman

Goslin was

46




inappropriately

discussing

his

interaction

and interference

with

another administrative

body

dealing

with

the

Dolomite

site

plan

application

specifically

because

the Town

Board

was

aware

this

application

was

currently

pending before

the

Planning

Board.

245.

The

actions of

Defendant

Goslin

which

were

undertaken

far outside

the

scope

of

his authority

as

a member

of the

Town

Board

as

aforesaid

lacked

any

legitimate

reason

and

were

arbitrary

capricious

not rationally

related

to

any

legitimate

government

interest

improperly

motivated

and conscience shocking

in

violation

of the substantive

due

process

guaranteed

by the

Fourteenth

Amendment

to

the Constitution

of the

United States

of

America.

246.

Defendant

Goslin’s

actions

were

so arbitrary

as

to constitute

a

gross abuse

of

governmental

authority.

247.

Dolomite

is

entitled

to compensatory

damages

against

Defendant

Goslin

for

its

out of pocket

expenses

and

lost

profits

associated

with

the

asphalt

plant

as

well

as interest

reasonable

attorneys’

fees

and

costs.

THIRD

C USE

OF

CTION

U.S.

Constitution

Fourteenth

mendment

Section

1983

Equal

Protection

gainst

All

Defendants

248. Plaintiff

repeats

and

realleges

each

and every

allegation

contained

in

Paragraphs

“I”

through

“247”

as if

fully

set

forth

herein.

249.

The Equal

Protection

Clause

of the

Fourteenth

Amendment

to

the

United

States

Constitution

provides that

“[nb

state shall

make

or

enforce

any law

which

shall

deny

to

any

person

within

its jurisdiction

the equal protection

of

its laws.”

250. Defendants

have

made

numerous

attempts

to

prevent

completion

of Dolomite’s

project.

47




251. Upon

information

and

belief,

Defendants

disparately

treated

and singled

out

Dolomite

for

adverse treatment

regarding

its Baliston

Spa

project.

252.

The

spectrum

of

such abuse

is

evidenced

by the

Defendants’ actions

in

discrimin ting

against Dolomite’s

lawful

project,

refusing to apply

the

same

longstanding

standards to

the Dolomite

project

as were

applied

to

other

similarly

situated

businesses

within

the

U

and,

instead,

selectively

singling

out

Dolomite’s

project and treating

it

in a disparate

manner

from

the

other

businesses

located

in the CIP;

issuing,

dilatorily,

in

bad faith

and

with

malicious

intent,

a

positive

State

Environmental

Quality

Review

Act

“SEQRA”

declaration

as

to

Dolomite’s

project

in

contravention

of

the

determination of the

Town Defendants’

own

consultants;

repeatedly

extending,

dilatorily,

in bad

faith

and

with

malicious

intent,

the

processing

ol’

Dolomite’s

site plan

application

before

the

Town

of Ballston

Planning

Board

“Planning

Board”

with the

sole

aim

of

delaying

processing

to permit

the adoption

of

L.L.

No.

3-20

13;

enacting

L.L.

No. 3-2013

with

the

sole in tent

of delaying,

hindering

and

preventing

olomites

project, despite

a

repetitive

bad

faith

statements

by

Town

Board

officials indicating

that said

law

would

not apply

to

Dolomite’s

proposed

project

and

b

Defendants’ awareness

that the law

was,

pre-adoption,

materially

defective

as

evidenced by

the public statements

of the

then

Town

Supervisor;

halting,

dilatorily,

in bad

faith and

maliciously,

the

processing

of Dolomite’s

site plan

application,

ostensibly as

a result

of the

enactment

of

L.L. No.

3-2013,

but in

advance

of that

law’s

statutory effective

date; frivolously

and maliciously

refusing in

bad faith

to

withdraw

L.L. No. 3-

2013,

despite Defendants’

public

recognition

of its

facial

and

material defects,

demanding

instead

that the Saratoga

Supreme

Court

judicially nullify

said

L.L.

No .

3-20

in order

to

prevent

and

delay

Dolomite’s

lawful project;

demanding,

subsequent

to

the judici l

nullification

of

L.L.

No.

3-2013,

dilatorily,

in

bad faith

and

maliciously,

that

Dolomite’s

the processing site

plan

48




application

be

delayed

while

minirnus

information

was

demanded

from,

and supplied

by,

Dolomite

in order

that

Dolomite’s long-pending project

would be thrther delayed, hindered

and

prevented while

the

Town prepared

to

enact

L.L. No.

2-2014;

and

adopting

L.L. No.

2-2014.

a

virtual

reenactment

of L.L. No.

3-20

13, suffering

from the same

substantive,

and

even

greater

notice,

defects than

its predecessor,

for the sole

malicious

and

bad

faith purpose

of delaying

and

preventing

Dolomite’s

lawful

project and

injuring

Dolomite.

253.

Defendants

thereby denied

Dolomite

the equal

prote tion

of the

law,

actionable

under

the

U.S. Supreme

Court’s

“class of

one”

jurisprudence

even

if

no

suspect

class

discrimination,

such

as religious

discrimination,

is

established

therein.

254. In particular.

on

numerous occasions,

Defendants

treated

Dolomite

in a

manner

distinctly

different

from

other

businesses

seeking

to similarly

establish

locations

in

the

o m

255.

From

the beginning,

on August

31,

2011, one

of the

first

public meetings

on

Dolomite’s

site plan application,

acting

Town

Board

member

Szczepaniak

urged the Planning

Board

to

vote against

the

project

see

Ex. 1-I”

at

55 .

At

the same

meeting,

Goslin.

who was

then

running

for

Town

Board

and was

later elected,

also

demanded

that

the Planning

Board

to vote

against

the

project see

Ex.

“H” at

42,

45 .

256.

Szczepaniak and

Goslin’s

thinly

veiled

directions

to

the

Planning Board

are

reflective

of Defendants’

disparate

treatment

of Dolomite’s

project

throughout

the

two and

a

half

year

period

during

which

Dolomite

sought approval

of its

site plan

application.

257.

The sole

reason

for the

zoning change

in L.L.

No. 3-2013

reiterated

in

the

equally

defective

L.L.

No.

2-20 14

was

to

halt the

processing of

Dolomite’s

site

plan application

and

prevent

Dolomite’s

project

from going fonvard.

258.

This motive

is

confirmed

by

statements

made by

members of

the public

who

49




referenced

the

legislation as

the

“proposition

for Dolomite”

see

Ex.

“X” at

25 .

259. This motive

is

also confirmed

by

Szczepaniak’s

and

Goslin’s

campaign

materials,

which form

a

part

of

this

Complaint.

260. Defendants’

animus

towards Dolomite’s

project

was

further demonstrated in

the

barrage

of newsp per

coverage,

prior to

and during

the pendency

of the

ill-fated

L.L.

No.

3-2013,

wherein

Goslin

wrote

that

“Zoning should

never

allow

an asphalt

plant

in

Ballston

Lake”

and

that

“the Dolomite’s

asphalt

plant

project

in Curtis Industrial

Park

highlighted

flaws

in

the

town’s

zoning

laws”

see

Exs. “J”

and

“N” .

261. On

September

24,

2013, the

Town Board

enacted

L.L. No,

3-2013

in

violation

of

SEQRA and

notice

requirements,

which

law

was later

invalidated

by the

Saratoga

County

Supreme

Court.

262. Prior

to

the

Court’s

invalidation

of L.L.

No. 3-2013,

despite

having

full

knowledge

of

the

defects contained

therein, Defendants

refused to withdraw

L.L. No.

3-2013

because

it

would

have

allowed

Dolomite’s

site plan

application

to

proceed before

the

Planning

Board,

263.

Instead,

Defendants

forced

the

state

court

to

invalidate

the

law

so that Dolomite,

while

it

h ph z r ly

attempted

to adopt

L.L. No.

2-20

14,

an

identical

law intended

to reenact

L.L.

No,

3-20

despite the

fact

that L.L.

No.

3-20

was

still valid

and in

effect.

264. Defendants

repeated

legislative

enactments,

aimed solely

at prohibiting

Dolomite

from gaining approval

for its

asphalt

plant,

irrationally

and arbitrarily discriminated

against

l intiff

in

violation

of Plaintiff’s

right

to

equal

protection of

the

laws.

265. Defendants’

actions

have

singled

out Dolomite

for

abusively arbitrary

and unfair

treatment.

with

the

intent

of halting

processing

of

Dolomite’s

site

plan

application

before

the

Planning

Board in

order to prevent

Dolomite’s

project and

treating Dolomite’s

project

differently

50




from

every

other

business

located

in

the urtis

Industrial

Park.

266.

efendants’

disparate

treatment

of Dolomite

is further

evidenced

by

the

Town’s

statements

that

manufacturing

and

industrial

uses from

other businesses,

such

as

Global

Foundries,

would

be

welcome in

the

Town’s

Industrial

District

see

Ex.

“NN”

at

36 .

267. The actions

of Defendants

as

described

above,

demonstrate

Defendants’

malicious

and

bad faith attempts

to

single

out

Dolomite’s

project

all in

an attempt to

prevent

Dolomite

from

locating its

asphalt

plant in

CIP

within

the Town.

268.

Defendants,

with

concerted

malicious

and

bad faith

intent,

discriminated

against

Plaintiff,

treating

it

differently

from

other

businesses

in

the

CIP

in order to

prevent

Plaintiff’s

construction

of

its

lawfully

permissible

asphalt

plant.

269.

Defendants’

conduct has

deprived

Dolomite

of

equal

protection

under

the law.

270.

Defendants

have

intentionally

been

treated differently from

others

similarly

situated,

to

an extent

that

shocks

the

conscience,

and

there

is

no rational

basis

for Dolomile’s

treatment.

271.

Dolomite

has

been damaged

and is

entitled to

compensatory

damages

against

Defendants,

for

its

out-of-pocket

expenses

and

lost

profits associated

with

the asphalt

plant,

as

well as

interest,

attorneys’

fees, excessive

consultants’

fees

and costs.

FOURTH

CAUSE

OF

ACTION

U.S.

Constitution

Fourteenth

Amendment

Conspiracy

Against

All

Defendants

272. Plaintiff

repeats

and realleges

each and

every

allegation

contained

in

Paragraphs

“I”

through

“271”

as

if fully

set

forth

herein.

273.

By

way

of their

conduct

as

set

forth in

this

Complaint,

and

acting under

color

of




state law,

the Defendants

have conspired, and continue to

conspire,

to

deprive

Dolomite

of

the

equal

protection

of

the laws as

guaranteed by the Fourteenth mendment

to the United

States.

274.

Defendants have sought

to use

their

laws

and

actions

to

deprive Dolomite

of

equal

protection

of

the

law,

treating

Dolomite

differently from

others

similarly

situated

in the

Town

by

issuing,

dilatorily,

in bad

faith and

with

malicious

intent, a

positive State Environmental

Quality

Review Act

“SEQRA” declaration

as to Dolomite’s

project in

contravention of the

determin tion

of

the

Town Defendants’

own consultants; repeatedly

extending,

dilatorily,

in

bad faith

and

with

malicious

intent, the processing

of

Dolomite’s

s ite p lan

application

before

the

Town of Ballston

Planning

Board

“Planning Board”

with the

sole aim of delaying

processing

to

permit

the

adoption

of L.L.

No.

3-2013; enacting

L.L. No.

3-2013

with the sole intent

of

delaying,

hindering and

preventing

Dolomite’s

project,

despite

a

repetitive bad

faith statements by

Town

Board

officials

indicating

that

said law would

not

apply

to Dolomite’s

proposed project and b Defendants’

awareness that

the

law

was,

pre-adoption,

materially defective as evidenced

by

the public

statements

of

the

then

Town Supervisor; halting, dilatorily,

in

bad faith and

maliciously, the

processing

of Dolomite’s

site

plan

application,

ostensibly

as

a result of the enactment

of L.L. No.

3-2013,

but in advance

of

that

law’s

statutory

effective

date;

frivolously

and

maliciously refusing

in bad

faith

to

withdraw

L.L.

No.

3-2013, despite

Defendants’

public recognition

of

its

facial and

material

defects.

demanding instead

that

the Saratoga Supreme

Court judi i lly

nullify said

L.L.

No.

3-2013 in order to

prevent and delay

Dolomite’s

lawful project;

demanding, subsequent to the

judi i l

nullification

of

L.L.

No.

3-2013,

dilatorily,

in bad faith and maliciously, that Dolomite’s

the-processing

site

plan

application

be

delayed

while ’ minimus information

was demanded from,

and

supplied by,

Dolomite

in

order that Dolomite’s

long-pending project

would be

further delayed,

hindered and

prevented while the Town

prepared to enact L.L.

No.

2-20

14; and

adopting

L.L.

No.

52




2-2014,

a virtual

reenactment

of

L.L. No.

3-2013, suffering

from

the

same

substantive,

and even

greater

notice,

defects than

its predecessor,

for

the

sole

malicious

and bad faith

purpose

of delaying

and

preventing Dolomite’s

lawful

project

and

injuring Dolomite.

275.

Defendants,

as officers

of

the

Town.

have

plainly

exerted an

improper

course

of

action

against

Dolomite

using

their positions

in the community.

276. Defendants

have

caused

Dolomite

to suffer,

and

to

continue

to

suffer,

irreparable

harm,

damage and

injury.

Dolomite’s

harm is

continuing.

FIFTH

C USE OF

CTION

Declaratory

Judgment

277.

Plaintiff

repeats

and

realleges

each and every

allegation

contained

in

Paragraphs

“1” through

“276”

as

if

fully

set

forth

herein.

278.

Under

New York

law, the

actions

of Town Defendants,

as described

above,

in

willfully

delaying.

misleading.

and hindering

Dolomite’s asphalt

plant

project

have

resulted

in

Town Defendants being estopped

from

claiming

that

Dolomite

does

not

possess

vested

rights

in

its

asphalt plant

project.

279.

By

reason

of the

foregoing,

this

Court

should

declare

that

development

of

Dolomite’s

premises

for

its

asphalt

plant

project

shall

be pursuant

to

the

Zoning Code,

Town

Comprehensive

Plan and

other regulations

regarding

property

development

as

they existed

on

the

day tha t

L.L. No,

3-20

13, which

has been

judi i lly

nullified

due to notice

defects.

was

enacted,

WHEREFORE

Plaintiff respectfully

requests

that this

Court

grant the following

relief:

1

Awarding

compensative

damages

against

Defendants

as

this Court

deems

just

for

the

loss of Plaintiffs

rights to

equal protection

and

due process

under the

laws,

and

expenses

53




incurred

by Plaintiff

and caused

by

Defendants’

actions in an amount

to be

determined

at

trial,

bu t

in no

event

less

than

4,000,000;

2)

Awarding

Plaintiff

the

costs,

disbursements

and

attorneys’

fees

incurred

in

connection

with this action

pursuant

to

42

U.S.C.

1988;

3)

Declaring

that

development

of

Dolomite’s

premises

for its asphalt

plant

project

shall

be pursuant

to the Zoning Code,

Town

Comprehensive

Plan

and

other

regulations

regarding

property development

as they

existed

on the

day that L.L.

No.

3-2013,

which

has

been

judicially

nullified

due

to

notice defects, was

enacted;

and

4) Awarding

Plaintiff

such other

and

further

relief

as this Court

deems

just

and proper.

JURY

DEMAND

Pursuant

to

Fed. R. Civ.

Pro.

38, Plaintiff

demands a

jury

on all issues

so

triable.

Dated:

July 24 ,

2015

Albany,

New

York

COUCH

WHITE,

LLP

damY

ultz. E

NDNYBar

Roll 10 974)

Jennifer Kavney l 1an

v.

Esq.

NDNY

Bar Roll 516072)

Auo’neys

for

Plainliff

540 Broadway,

P.O. Box 22222

Albany,

New York 1220

1-2222

Telephone:

518)

426-4600

E-mail:

aschultzWcouchwhite.com

E-mail:

jharvev couchwhite.com

o[Ballslon:PIcadingslgS3

Complaint

07-23-15)


Complaint (Filed) without exhibits.pdf

Documents

Transcript of Complaint (Filed) without exhibits.pdf