STATE OF NEW YORKSUPREME COURT COUNTY OF SARATOGA _____________________________________________

THOMAS G. McTYGUE, REMIGIA FOY, and

RAYMOND WATKIN,

Petitioners-Plaintiffs,

-against-

Index No.: 2014-3552CITY OF SARATOGA SPRINGS,

Hon. Richard E. SiseCITY OF SARATOGA SPRINGS CITY COUNCIL,

JOANNE D. YEPSEN, MAYOR,

JOHN FRANCK, COMMISSIONER OF ACCOUNTS,

MICHELE MADIGAN, COMMISSIONER OF FINANCE,

ANTHONY SCIROCCO, COMMISSIONER OF PUBLIC WORKS,

CHRISTIAN MATHIESEN, COMMISSIONER OF PUBLIC SAFETY,

THE ALGONQUIN BUILDING, LLC, and CONGREGATION

& YESHIVA PARDES YOSEF DCHASIDEI BELZ, a New York Religious Corporation,Respondents-Defendants.

_____________________________________________PETITIONERS MEMORANDUM OF LAW

IN OPPOSITION TO CITY RESPONDENTS MOTION.

TUCZINSKI, CAVALIER & GILCHRIST, P.C.Daniel J. Tuczinski, Esq.Attorneys for Petitioners54 State Street, Suite 803

Albany, New York 12207

(518) 463-3990

PRELIMINARY STATEMENT

Petitioners respectfully submit this memorandum of law in opposition to the motion by the City Respondents, which seeks dismissal of the Verified Petition/Complaint in this action, which challenges the Citys sale of a parcel of prime real property located on Broadway in Saratoga Springs for less than fair market value based upon private negotiations and a deceptive and fraudulent RFP. This matter is brought by three taxpayers of the City of Saratoga Springs who believe that the transaction is illegal, violates the State Constitution, the City Charter, the General City Law, the Municipal Home Rule Law, the public trust doctrine, and the State Environmental Quality Review Act. The illegality of the transaction is currently being investigated by the Public Integrity Bureau of the Attorney Generals office, and Petitioners herein have also asserted a claim pursuant to N.Y. General Municipal Law 51.

Because the claims are not time-barred, Petitioners have standing, and the Petition/Complaint states causes of action, the Court must deny the City Respondents motion in its entirety.ARGUMENT

POINT I

PETITIONERS HAVE STANDING.A. Petitioners Have Standing to Challenge the Illegal Waste of Public Resources by the City Respondents.Respondents assert that Petitioners lack standing to assert the Article 78 claims. In doing so, Respondents generically refer to the Article 78 claims, without addressing the underlying nature of those claims. But the Article 78 claims asserted in the Verified Petition seek to cancel the transactions as illegal based upon the City disposing of its property for less than fair value, using a process that is illegal, and as being contrary to the Citys responsibility under the public trust doctrine. These same errors comprise a part of the basis for Petitioners claim under General Municipal Law 51. Respondents do not challenge Petitioners standing under General Municipal Law 51, and therefore, have waived any objection to Petitioners standing to proceed under that statute (CPLR 3211 [a] [3], [e]; see Ford v. New York State Racing & Wagering Bd., 107 AD3d 1071, 1076 n.6 [3d Dept 2013]; Provident Bay Road, LLC v. NYSARC, Inc., 117 AD3d 1356, 1358 [3d Dept 2014]). Since Petitioners have taxpayer standing, and the Article 78 claims are premised on many of the same facts on which their taxpayer action is premised, Petitioners have standing to assert the Article 78 claims.Respondents position that Petitioners lack standing to challenge the ill-advised method by which Respondents chose to market the Collamer lot is contradicted by Oyster Bay Associates, L.P. v. Town of Oyster Bay (2013 N.Y. Misc. LEXIS 4888 [Sup. Ct., Suffolk County October 9, 2013]). There, the Court held that the interests of justice requires recognition of Taubmans standing. Taubman is tax-paying resident of the Town. It is clear that the public interest would be subverted if no one were found to have standing to challenge the planned sale of municipal real property (id.). The City Defendants fail to demonstrate why the same rule should not apply here, and in apparent recognition that the same rule should apply here, they simply claim that this Court should ignore Oyster Bay Associates, L.P.Regardless of whether the Court concurs with the result in Oyster Bay Associates, L.P., standing has been granted absent personal aggrievement where the matter is one of general public interest (Police Conference of New York, Inc. v. Municipal Training Council, 62 AD2d 416 [3d Dept 1978]). [T]he preparation of specifications, advertising of bids and awarding contracts for a public project is a matter of acknowledged public interest which relieves the petitioner of the obligation to show that it is an aggrieved party or that it has any special interest (Albert Elia Building Co. v. New York State Urban Dev. Corp., 54 AD2d 337, 342 [4th Dept 1976]). In fact, the Court in General Building Contractors of N.Y. State v. County of Oneida (54 Misc2d 260 [Sup. Ct., Oneida County 1967]) stated: An article 78 proceeding such as the one before this court may be instituted by one who is a citizen, resident and taxpayer even though there is no personal grievance or personal interest in the outcome shown. The General Building Contractors of N.Y. State case involved public bidding requirements, also designed to ensure that corruption and favoritism does not impair the public fisc.LaBarbera, Society of Plastics, and Lancaster Development, all cited by the City Defendants, do not justify dismissal on standing grounds. LaBarbera v. Town of Woodstock involved a Towns decision to forever preserve its own property through the granting of a conservation easement to a not-for-profit entity (29 AD3d 1054 [3d Dept 2006]). The question of standing in LaBarbera only related to the petitioners first cause of action, which challenged the Towns title to property it was seeking to preserve (id. at 105556). The Court held that the petitioners lacked standing because they admitted they did not hold any current or future interest in the property, and therefore could not be heard to complain that the Town, which did own the property, would be giving a conservation easement, as it was statutorily authorized to do. This case is different: here, the City is not seeking to preserve its own property, and Petitioners are not challenging the Citys title to the property; the City is seeking to transfer a prime piece of City-owned land on Broadway to a private, for-profit entity for half of what the property is worth. LaBarbera concerned how the Town was using (or, more precisely, choosing not to use) its property; this case involves the City making an illegal gift of taxpayer property.Society of Plastics v County of Suffolk, addressing standing to assert SEQRA claims, is not relevant to Petitioners standing to assert claims relating to the City Respondents waste of public assets (77 NY2d 761 [1991]). As Respondents readily note standing under SEQRA requires a different standard of review. In fact, in Society of Plastics, the Court distinguished land use and environmental standing from traditional standing. First, it pointed out that a prior version of the SEQRA legislation would have included a citizen suit provision, whereas the final adopted SEQRA legislation did not (id. at 770). Then, it noted that land use standing had been refined into a more restrictive test than traditional standing. Land use standing requires a direct interest in the administrative action being challenged, different in kind or degree from that of the public at large, whereas traditional standing employed the concept of plaintiffs aggrievement, which is not so restricted (id. at 77475). Finally, the petitioner in Society of Plastics was alleging harm in the form of added expense if plastics products were banned (as proposed by the legislation challenged in that case), a pure economic injury that was not within the zone of interests that SEQRA was intended to protect (id. at 77778). Unlike in Society of Plastics, Petitioners here, as taxpayers, are asserting claims based on illegal waste of municipal property, which does aggrieve them as taxpayers and which claims are within the zone of interests sought to be protected under the statutes under which they assert their claims.Finally, Lancaster Development v. McDonald is distinguishable (112 AD3d 1260 [3d Dept 2013]). Lancaster involved a company that chose not to bid on a public works project, but then commenced a proceeding challenging the bid specifications. The Court found no standing because the alleged harm arose not from the bid specifications about which the company complained, but from the choice by the company not to submit a bid. Moreover, the Court recognized that the competitive bidding statutes were intended to protect the public fisc, not individual bidders, and therefore, unlike here, the companys alleged injury was not within the zone of interests sought to be protected by the competitive bidding statute under which the company was proceeding. The Court also found no common law taxpayer standing in Lancaster, since a losing bidder could have commenced suit to challenge the bid specification at issue (id. at 1263). Here, the harm suffered by Petitioners relates to the Citys waste of a prime piece of property located on Broadway, by selling it for less than half of what it is worth. This type of harm is clearly within the zone of interests sought to be protected by the provisions of the Constitution, the City Charter, and the General City Law under which Petitioners assert their claims. Moreover, since the RFP was successfully designed to exclude all potential bidders other than the Aronson family, with whom certain City officials acknowledge they first negotiated the deal before preparing the RFP, there were no losing bidders who could bring a challenge. Therefore, Petitioners have standing.B. Petitioner McTygue Has Standing to Assert the SEQRA Challenges.Additionally, Respondents claim that Petitioners lack standing to assert challenges to the transaction based on SEQRA violations. What Respondents fail to acknowledge is that Petitioner McTygue owns property located at the corner of McTygue Place and Henry Street. The McTygue property is located just approximately 250 yards from the Collamer lot, which the City has readily acknowledged is being sold to facilitate a private developers construction of a mixed-use, multi-story building thereon. The City also readily acknowledges that the sale of the Collamer lot will eliminate 42 parking spots on Broadway, and for that reason, the Algonquin Building, LLCs development of the Collamer lot will await construction of a parking garage proposed by the Saratoga Springs City Center Authority for property located at the corner of York Street and High Rock Avenue, which is just 105 yards from the McTygue parcel. If the sale of the Collamer lot is consummated, the demand for the proposed parking garage will necessarily increase. The proposed parking garage consists of a 70 foot tall, 5 floor parking deck that spans from the City Center Building on Maple Avenue, over Maple Avenue, across City-owned land near High Rock Park, to High Rock Avenue. The sale of the Collamer lot parcel, given the proximity of both the Collamer lot and the proposed City Center Authority parking garage to the McTygue parcel, will impose upon Petitioner McTygue environmental harm that is greater in degree than it will on the general public (McGrath v. Town Bd. of North Greenbush, 254 AD2d 614, 616 [3d Dept 1998] [petitioner had standing to challenge based on SEQRA where she alleged that her property was located approximately 500 feet from the project site]).Accordingly, Petitioner McTygue has standing to assert causes of action based upon violations of SEQRA.POINT IITHE CLAIMS ARE TIMELY.

A. The Claims Challenging the Illegal Waste of City Assets are Timely.

The City Respondents posit that the causes of action seeking to annul the resolutions authorizing the Citys agreement to the transaction are time-barred because they were not brought within four months of the December 17, 2013 resolution. That is wrong.Initially, the City Respondents position that all Article 78 causes of action are universally governed by a four-month statute of limitations is wrong. To determine the applicable statute of limitations, [r]egardless of how a pleading is styled, the Court must ascertain the true nature of the case (Dandomar Company, LLC v. Town of Pleasant Valley Town Board, 86 AD3d 83, 90 [2d Dept 2011]). In Dandomar Company, the Appellate Division applied a one-year statute of limitations to five Article 78 causes of action where the substance of the claim asserted a challenge to the abandonment of a highway under Highway Law 205, which carries a one-year statute of limitations (id. at 91).

Here, the Article 78 causes of action (excluding those alleging SEQRA violations) allege that the City Respondents engaged in waste by agreeing to sell the Collamer lot for $775,000, when it has a fair market value in excess of $1,100,000 (in violation of the City Charter, the New York Constitution, and the public trust doctrine) using a process that violates the City Charter and the General City Law aimed at securing full value. These claims, although styled as Article 78 claims, are in substance, claims asserting waste cognizable under General Municipal Law 51. Regardless of whether these claims are measured by the one-year statute of limitations (Clowes v. Pulver, 258 AD2d 50, 55 [3d Dept 1999]) or the three-year statute of limitations (Espie v. Murphy, 35 AD3d 348, 348 [2d Dept 2006]), and even if measured from December 17, 2013, the claims are still timely. But even if the Court applies a four month statute of limitations to the Article 78 claims, the Article 78 claims are still timely. A challenge to agency action does not ripen, and therefore the statute of limitations does not begin to run, until two requirements are met: (1) the agency must have reached a definitive position on the issue that inflicts actual, concrete injury, and (2) the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party (Best Payphones, INc. v. Dept of Info. Tech. and Telecomm. of the City of N.Y., 5 NY3d 30, 34 [2005]). Where an agencys determination remains subject to further correction by the same agency, the determination is not ripe for review, and therefore, the statute of limitations has not been triggered (Walton v. N.Y.S. Dept of Correctional Services, 8 NY3d 186, 196 [2007]). If the harm claimed is contingent upon events which may not come to pass, the claim . . . is nonjusticiable as wholly speculative (Adirondack Council, Inc. v. Adirondack Park Agency, 92 AD3d 188, 190 [3d Dept 2012]). A determination that is merely a preliminary step in the process is not final and therefore not ripe for review (Sour Mountain Realty v. N.Y.S. Dept of Envtl. Conserv., 260 AD2d 920, 922 [3d Dept 1999]).

A claim brought any time before August 5, 2014 would not have been ripe, and therefore, the statute of limitations did not begin to run until August 5, 2014. The resolution adopted on December 17, 2013, made clear that the resolution started the process, not completed it, as evidenced by the fact that it states: The City Council accepts the proposal submitted by the Algonquin Building, LLC SUBJECT TO AND CONDITIONED UPON the following: The City and the LLC shall enter into a written agreement for the sale of the aforementioned real property, and said agreement shall be subject to final approval of the City Council. The City (and therefore its taxpayers) could not be bound to consummate the transaction by virtue of the December 17, 2013 resolution, since it had not yet signed a written contract to do so, and in fact, had not yet authorized the Mayor to execute a contract. Taxpayers could not have suffered harm until the City bound itself to consummate the transaction. At any point in time through August 5, 2014, the City could have opted not to proceed with the transactions, such as if the SEQRA reviewwhich had not yet begundemonstrated that the proposed action would result in adverse environmental impacts that were too significant to approve. In fact, in this regard, the SEQRA Environmental Assessment Forms relating to the purchase of the Union Avenue Parcel and the sale of the Collamer lot had not been executed until July 31, 2014 and August 5, 2014, respectively. One of the very first steps in the SEQRA process is completion of the EAF, which precedes the determination to issue a negative declaration (which ends the SEQRA process), or to issue a positive declaration (which continues the SEQRA process through preparation of an environmental impact statement). The City Councils negative declarations, which as a matter of law must precede any decision on the actions, were adopted on August 5, 2014. It was after the adoption of the negative declaration that the City Council passed a motion to authorize the Mayor to execute the contracts, which bound the City to consummate the transactions. At any one of these steps, the City Council could have determined not to proceed with either transaction. Any cause of action challenging the transaction was therefore not ripe for judicial review until August 5, 2014. This necessarily means that the statute of limitations could not have begun to run until August 5, 2014. In fact, on December 17, 2013, Commissioner Scirocco pointed out that the December 17, 2013 resolution was not binding the parties to the transaction, but was instead subject to a further resolution of the City Council (Webcast Excerpt of December 17, 2013 City Council Meeting, at 21:30).Finally, the architect of the transaction, Commissioner Mathiesen, stated at the December 17, 2013 meeting, that the resolution was the first step in the process (Webcast Excerpt of December 17, 2013 City Council Meeting, at 25:50). The City Respondents position now that the December 17, 2013 resolution was the final step giving rise to a right to seek judicial review is belied by the recorda record much of which the City Respondents have chosen not to provide to the Court.

Since the statute of limitations did not begin to run until August 5, 2014, this proceeding, commenced on December 5, 2014, was timely commenced, regardless of whether the applicable statute of limitations is four months, one year, or three years. Accordingly, the City Respondents motion must be denied. B. The SEQRA Claims are Timely.

Mayor Yepsen was not authorized to sign a contract binding the City to either the sale of the Collamer lot or the purchase of the Union Avenue parcel until on or after August 5, 2014. Therefore, any challenge to the SEQRA review of the transaction was not ripe until the City Council took that final step of approving the contracts.

Significantly, the basic purpose of SEQRA is to incorporate the consideration of environmental factors into the existing decisionmaking processes of government at the earliest possible time (Troy Sand & Gravel Co., Inc. v. Town of Nassau, ___ AD3d ___, 2015 N.Y. Slip Op. 01511 [3d Dept February 19, 2015]; 6 NYCRR 617.1 [c]). Thus, [n]o agency involved in an action may undertake, fund or approve the action until it has complied with the provisions of SEQR (6 NYCRR 617.3 [a]). One of the very first steps in the process is the completion of an Environmental Assessment Form, which assists the agency in determining significance. Here, the Environmental Assessment Forms for the purchase of the Union Avenue parcel and for the sale of the Collamer lot were executed on July 31, 2014 and August 5, 2014, respectively. Then, negative declarations were adopted on August 5, 2014, followed by the City Councils final determination on August 5, 2014 to authorize the Mayor to sign contracts relating to the transactions. The City Respondents rely heavily on Young v. Board of Trustees of the Village of Blasdell (89 NY2d 846 [1996]), claiming that in that case the Court held that the petitioner was too late to challenge a SEQRA negative declaration that was adopted nine months after the action was taken that required the SEQRA negative declaration. In their papers, Respondents assert the timeline as follows: [o]n December 13, 1993, the lease was executed and, in September of 1994, the Board issued a negative declaration under SEQRA, suggesting to the Court that the September 1994 negative declaration related to the lease approval of December 1993. That suggestion is at best misinformed, or worse, misleading. In fact, as is made clear in the Appellate Division decision in that case,

the issuance of the negative declaration by the Village was not related to the resolution or lease, but was for the construction and operation of the transfer station. The SEQRA review and negative declaration issued by the Village were part of the Department's application process in considering Blasdell's application for a solid waste management facility permit (Young v. Bd. of Trustees of Vill. of Blasdell, 221 AD2d 975, 978 [4th Dept 1995]).In fact, the Appellate Division pointed out that the challenge to the September 1994 Negative Declaration was not even ripe because there had been no final agency determination with respect to the construction and operation of the transfer station (id.).

Here, the Negative Declarations did relate to the proposed transactions, and were adopted the same night, August 5, 2014, that the City Council made its final determination with respect to the sale of the Collamer lot and the purchase of the Union Avenue parcel. This case was commenced within four months of that date, and therefore, the Article 78 causes of action challenging the transactions based upon SEQRA violations are timely. The City Respondents motion must therefore be denied. C. The Public Trust Doctrine Claim is Timely.

As explained in detail above, the City Council did not take final action that would be subject to review until August 5, 2014, and therefore, under even the four-month statute of limitations, the claims asserting that the sale of the Collamer lot violates the public trust doctrine are timely.

In addition, however, despite the City Respondents attempt to re-cast the Fourth Cause of Action as an Article 78 claim, in fact, it appropriately asserts a declaratory judgment claim, which carries a six-year statute of limitations: [C]ontrary to the respondents contention and the Supreme Courts determination, a declaratory judgment action rather than a proceeding pursuant to CPLR Article 78 is the proper vehicle for resolving the petitioners second cause of action, founded upon the public trust doctrine. The CPLR does not specifically prescribe a limitations period for declaratory judgment actions. To determine the limitations period applicable to a particular declaratory judgment action, the court must examine the substance of the action to identify the relationship out of which the claim arises and the relief sought . . . The petitioners second cause of action seeks to prevent the City from acting outside the scope of its authority in violation of the public trust doctrine. . . . [T]he second cause of action is separate and distinct from the first cause of action challenging the SEQRA determination and the six-year catch-all limitations period of CPLR 213(1) is applicable (Jones v. Amicone, 27 AD3d 465, 46970 [2d Dept 2010]).

Here, the Fourth Cause of Action makes clear that Petitioners are seeking to prevent the City from acting outside the scope of its authority in violation of the public trust doctrine, and the six year statute of limitations does not expire until, at the earliest, August 5, 2020. Therefore, the Fourth Cause of Action, interposed on December 5, 2014, is timely by more than 5 years, and the City Respondents motion must be denied.POINT IIIPETITIONERS HAVE STATED CAUSES OF ACTION.

The City Respondents also seek dismissal under CPLR 3211 [a] [7]. On a motion to dismiss pursuant to CPLR 3211 [a] [7], the Court must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable legal theory (e.g., Tomhannock, LLC v. Roustabout Resources, LLC, 115 AD3d 1074, 107576 [3d Dept 2014] [quoting Woodhill Elec. v. Jeffrey Beamish, Inc., 73 AD3d 1421, 1421 [2010]). Whether the plaintiff will ultimately be successful in establishing those allegations is not part of the calculus (Landon v. Kroll Laboratory Specialists, Inc., 22 NY3d 1, 56 [2013]). A court may freely consider affidavits submitted by a plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one (Leon v. Martinez, 84 NY2d 83, 8788 [1994]); Raquet v. Travelers Cas. & Sur. Co., 2 AD3d 1310, 1310 [4th Dept 2003]). As set forth below, Petitioners have stated causes of action and the City Respondents premature motion must be denied.A. Petitioners Have Stated Causes of Action for Violation of the City Charter, the New York Constitution, the General City Law, and the Municipal Home Rule Law.Petitioners have stated causes of action for violations of the City Charter, the New York Constitution and the General City Law.

The City Charter requires that the City secure fair value for any property it sells. The Constitution prohibits the City from making a gift of its property. The Petition alleges here that the City is purporting to sell the Collamer Lot for $775,000 when the value of the Collamer Lot is in excess of $1,100,000.00. The City Respondents, prior to authorizing the transactions, were presented with a bona fide, written offer to purchase the Collamer Lot for $1,100,000. They were also presented with the offerors appraisal, which estimated the value of the Collamer lot at $1,600,000. Although the City Respondents had generated an appraisal to support their privately negotiated transaction prices, they were presented with a willing buyer who was offering $325,000 more than that offered by Mr. Aronson, prior to the City Council authorizing the Mayor to sign a contract. The fair market value for the property accordingly, was at least $1.1 million (see Keator v. State, 23 NY2d 337, 339 [1968] [fair market value is the price for which the property would sell if there was a willing buyer who was under no compulsion to buy and a willing seller under no compulsion to sell]; see also Rusciano & Son Corp. v. Roche, 70 AD2d 953, 955 [2d Dept 1979]).In the face of a willing buyer that was offering to pay $325,000 more than the Algonquin Building, LLC, the transaction at issue cannot be construed as generating fair value for the City, nor can it be construed as anything but a gift of significant value (under the circumstances, a gift of at least $325,000 in value) from the City to the Algonquin Building, LLC.

In fact, prior to executing the contract to sell the Collamer Lot, the Mayor recognized the Citys obligation to make sure it was securing the best value for the Collamer Lot, but she was ignored by the rest of the City Council. The Mayors discussion begins at 9 minutes, 30 seconds in the Webcast Excerpt of the August 19, 2014 City Council meeting, and is reproduced below:

#11 is the last item on my agenda is to propose an additional step to ensure that we as a council, are getting the best value for the Collamer Lot.

Since we voted for the sale of the Collamer Lot, brought to us simultaneously with the purchase of the Union Avenue land contract two weeks ago, new information has been put in front of us. We now have two vastly different appraisals on the table, one for $775,000 and one for $1.6 million. We also have a signed contract to purchase the lot for $1.1 million in front of us, $325,000 more than our current offer. After much research on this matter, our City Attorney has concurred this offer does appear to be a bona fide offer.

This lot is City property and we have a financial and legal responsibility to all of our city citizens to ensure we are selling the property that the city owns for fair market value. How can we ignore this new information and justify it to our tax paying citizens? We, as elected officials, are required by law, not just if we want to, we are required by law to secure fair market value for taxpayer-owned property.

The contract to sell the Collamer lot is a separate legal document from the one to purchase the land on Union Avenue. I have the signed the contract to purchase the land on Union Avenue as agreed for the new EMS station. We should schedule that closing on that property and begin planning immediately for the EMS station. We have all agreed at this table that the safety of our citizens living in the Eastern part of the City must be a priority. Regarding the Collamer lot; Ive been advised on specific legal steps we can take immediately to reduce our future legal exposure. Lawsuits are not only costly, but can substantially delay projects. Our attorneys have advised us to procure a third appraisal. Not only is it prudent to listen to the experts, but I cannot come up with one good reason not to. We need to make this deal as bullet-proof as possible and procure one more appraisal will be quick and easy.

Therefore, in the spirit of the publics trust, I propose this additional appraisal be done as soon as possible. It certainly seems logical to me as the next step so that we can in good conscience answer the public why we are not considering the higher offer. We should enlist a third appraisal to determine the fair market value of the lot today. So I am making a motion this evening to authorize the Council to obtain an appraisal of 500 Broadway, commonly known as the Collamer lot, to ensure we are securing fair market value on behalf of the City for this taxpayer-owned property. And thats a motion, is there a second?

[No responses]

No second. Okay, I think this is still a very prudent thing to do and we are required by law to do it, in lieu of the Councils non-compliance or even a second to my motion for discussion, I regret to say I must submit to the will of the Council and execute the councils wishes and I will sign the contracts now. That concludes my agenda. Respondents also attack the appraisal that estimated the Collamer lots value at $1.6 million, but that attack ignores the written offer made by Mr. Zappone to buy the lot for $1.1 million. Moreover, Respondents criticism to the Bellcourt appraisal, and reliance upon their own appraisal, merely raise a question of fact, which may not be appropriately considered on this motion (Grand Realty Co. v. City of White Plains, 125 AD2d 639, 640 [2d Dept 1986]). Moreover, Petitioners have stated causes of action alleging a violation of the City Charter and the General City Law relating to the method of procuring the sale of the Collamer Lot. The General City Law requires that real property be sold at public auction to the highest bidder after three weeks of published notice (N.Y. General City Law 23 [b] [2]). The City Respondents claim that the City Charter supersedes that provision and allows the City to sell real property in a private sale. However, to supersede state law, a municipality invoking its supersession authority [must] state its intention with definiteness and explicitness (see Kamhi v. Town of Yorktown, 74 NY2d 423, 43435 [1989]). In their motion, Respondents summarily claim that the City Charter supersedes General City Law 23(b)(2), but they provide no evidence that in enacting the City Charter, the City stated its intention with definiteness and explicitness, and with specific reference to that portion of the General City Law that it was allegedly superseding (N.Y. Mun. Home Rule Law 22; Turnpike Woods, Inc. v. Town of Stony Point, 70 NY2d 735, 738 [1987]). Therefore the Citys motion to dismiss must be denied, as Petitioners have stated causes of action asserting violations of the New York Constitution, the General City Law, the City Charter, and the Municipal Home Rule Law.B. Petitioners Have Stated a Cause of Action Under the Public Trust Doctrine.

Respondents have made a CPLR 3211 motion, not a CPLR 3212 motion, and therefore, their reliance upon Matter of 10 East Realty, LLC v. Inc. Vill. of Valley Stream (49 AD3d 764 [2d Dept 2008]) (hereinafter, 10 East Realty II) is misplaced. In 10 East Realty II, the Court did not find that the petitioners had failed to state a cause of action, but instead that they failed to prove their case:

Municipal parking may constitute a public use of property and the petitioners may have been able to establish that the Village was not entirely free to sell or lease the subject parking lot had they shown that the property was dedicated for public use through express provisions in a deed or legislative enactment. The petitioners, however, submitted no evidence demonstrating that such dedication had occurred, and thus failed to carry their burden of proof on this issue.

What Respondents again do not reveal is that in the very same dispute, on an earlier CPLR 3211 motion, the very same court rejected the argument now made by Respondents that the public trust doctrine never applies to municipal parking lots:

The petition alleges that the parking lot is held by the Village for public use, that the Village did not seek the State Legislatures approval of the lease, and that Lincoln Realty, a private corporation, was leasing the parking lot for its private use. Thus, considering the petition alone, deeming all of its allegations to be true, and according the petitioners the benefit of every inference, the allegations asserted in the petition demonstrate the existence of a bona fide justiciable controversy which should be addressed. Accordingly, the respondents pre-answer motion to dismiss the petition for failure to state a cause of action should have been denied . . . (Matter of 10 East Realty, LLC v. Incorporated Vill. of Valley Stream, 17 AD3d 474, 476 [2d Dept 2005]) (hereinafter, 10 East Realty I).

Here, the petition alleges that the Collamer Lot was and is a city parking lot held by the City for public use, the Collamer parking lot is specifically identified and referenced in the City of Saratoga Springs City Code in Chapter 225 as a municipal parking lot, the Collamer parking lot has been dedicated to public use as a free public parking lot, the Collamer Lot has been dedicated to public use as a free public parking lot, and the Collamer Lot has been dedicated to the public trust. The petition also alleges that the State Legislature has not authorized the City to alienate or sell the Collamer Lot to a private party for a private possession or use. As in 10 East Realty I, the City Respondents motion to dismiss for failure to state a cause of action must be denied.

The other cases cited by Respondents are not on point. Niagara Preserv. Coalition, Inc. v. N.Y. Power Authority is not relevant (121 AD3d 1507 [4th Dept 2014]). There, the Court held that the public doctrine only applied to municipal property, not state-owned property (id. at 1511). There, the dispute centered on a State park, and therefore, the public trust doctrine did not apply. No one is asserting at the Collamer lot is state-owned land.

Friends of Van Cortland Park v. City of New York, cited by Respondents, does not defeat Petitioners claims either (95 NY2d 623 [2001]). There, the Court of Appeals merely confirmed that the public trust doctrine applied to parks, not that the doctrine did not apply to other municipal property dedicated to public use (id. at 63031).

In Powell v. City of New York, the Court found the public trust doctrine inapplicable because there had been no showing that the property had been dedicated to public use (85 AD3d 429, 431 [1st Dept 2011]). To the contrary, the Court found that the conveyance of the property to the City in that case expressly prohibited designation of the subject property as mapped parkland, and its use was restricted 70% of the time to those who pay membership fees. Again, the Powell case does not stand for the proposition that the public trust doctrine never applies to municipal parking lots; rather, it stands for the proposition that the public trust doctrine applies only where municipal property has been dedicated to public use.

Thus, the Court must deny the City Respondents motion to dismiss, because the allegations of the Petition adequately allege a public trust doctrine claim.C. Petitioners Have Stated A Claim for Improper Segmentation under SEQRA.

The City Respondents contention that there is no segmentation claim is belied by the record (see 6 NYCRR 617.2 [ag], 617.3 [g], 617.7 [c] [2]). Factually, the entire purpose of the sale of the Collamer lot and purchase of the Union Avenue parcel was to facilitate the construction of a fire/emergency service facility on the Union Avenue parcel and for the Algonquin Building, LLC to build a mixed use development on the Collamer lot. While clearly these purposes existed during the private negotiations between City officials and Mr. Aronson, the RFP also makes it clear:[T]he City is seeking the acquisition of land suitable in size, location and development for the construction of a Fire/Emergency Service facility that will service the citizens on the eastern ridge of Saratoga Springs, as well as, the rest of the City. . . .

. . .

The City of Saratoga Springs is desirous of maximizing utilization of this important Broadway parcel [the Collamer lot] with the development of a new multi-story mixed use commercial building.

. . . .

The City of Saratoga Springs holds title to the entire Collamer lot parcel. However, the City is willing to offer this site to an identified purchaser exemplifying the best development plan meeting the criteria of this RFP . . . .

Also, any responders to the RFP were required to submit with their proposal, [d]escription of proposed use of the Collamer Parking Lot.Additionally, lest there be any misunderstanding, the single response to the RFP included the following:

The respondent owns the Algonquin Building which is adjacent to the Collamer Lot. We are currently working with Bonacio Construction Inc. to complete a thorough historic renovation of this property. Our goal in acquiring the Collamer lot is to allow us to develop a mixed use project that, in keeping with the goals of the T-6 Zone, will tie into the massing and aesthetic qualifies, as well as the retail energy established by the Algonquin Building to the north and the Collamer building to the South. Upon acceptance of our proposal we would quickly begin work, in cooperation with the Citys Land Use Boards, to develop conceptual plans and renderings of our project.

Even the December 17, 2013 resolution accepting the proposal (subject to further action by the City Council) clearly recognized that the transactions were not simply separate land transactions, but instead were part of a project plan to develop both the Collamer Lot and the Union Avenue Parcel:

That request [the RFP] specified that the City was seeking proposals from individuals and entities interested in purchasing the City-owned parcel at 500 Broadway . . . and developing on that lot a new multi-story mixed use commercial building. The request further specified that that prospective purchasers must also offer land to the City suitable in size, location, and development for the construction of the aforementioned Fire/Emergency Services facility . . .

. . . .

The LLC [prospective purchaser of the Collamer lot] shall make all required applications to and obtain all required approvals from the Saratoga Springs Planning Board, Zoning Board of Appeals, Design Review Commisision, and all other local, state and federal government agencies, boards, bodies, commissions and entities, to develop a multi-story mixed use commercial building . . . .

The LLC shall have eighteen (18) months from the date of the written agreement of sale between the LLC and the City to complete all requirements for applications for all required approvals from all governmental authorities, and to file said applications appropriately. . . .

In addition to and not in limitation of any and all provisions in this resolution, the City shall have the right to proceed with the development of [the Union Avenue parcel] as a Fire/Emergency Services facility immediately upon closing the sale of that parcel.

The development of the Union Avenue Parcel into a Fire/EMS service facility and the construction of a mixed-use development on the Collamer lot are, and always have been, integral components of the transactions. From the very beginning, the sale of the Collamer lot was conditioned upon the purchaser developing a multi-story mixed use commercial building thereon, and the Citys purpose in acquiring the Union Avenue parcel was specifically to construct a Fire/EMS service facility. The purchase of the Union Avenue parcel and the sale of the Collamer lot are part of the larger planfar from being speculativeto construct the Fire/EMS service facility and the mixed use building on Broadway. The City Respondents suggestion that the construction of either development is not likely to be undertaken as a result or dependent upon the real property transactions is irrational, at best.Center of Deposit, Inc. v. Village of Deposit, cited by Respondents is not on point (90 AD3d 1450 [3d Dept 2011]). There, there was absolutely no record evidence that petitioneror, indeed, any prospective purchaserhad any solidified plans to develop either parcel (id. at 1453). Clearly, there is record evidence here that both parties have plans to develop the parcels at issue.

Accordingly, Petitioners have stated a claim for improper segmentation, in violation of SEQRA.

D. Petitioners Have Stated a Claim Under N.Y. General Municipal Law 51.

Finally, the City Respondents ask the Court to dismiss the General Municipal Law 51 claim. First, the Petition very clearly alleges facts sufficient for the Court to infer that the transaction was effectuated through corrupt and illegal conduct, particularly in light of admissions made in the Respondents motion papers and the additional submission made by Petitioners on this motion (see Gessin v. Throne-Holst, 43 Misc3d 517, 533534 [Sup. Ct., Suffolk Co. 2014]). With knowledge that the Union Avenue parcel was owned by a religious corporation in which Mr. Aronson is an officer, and with information that the Collamer Lot may be worth twice as much as the price that Mr. Aronsons private, for-profit development entity was offering, the City Respondents (except the Mayor) relentlessly pursued the coupled transaction of both (1) buying the Union Avenue parcel (from Mr. Aronsons not-for-profit, for as much as $500,000 less than what Aronson was seeking) and (2) selling the Collamer Lot (for between $325,000 and $825,000 less than what is worth, to Mr. Aronsons for-profit development entity) without seeking an additional appraisal, and without even considering an independent offer made to purchase the Collamer lot for $1.1 million. This entire transaction, inclusive of, but not limited to, the deceptive and fraudulent RFP (which the City Respondents acknowledge was issued simply to appease the public), smacks of public and not-for-profit corruption and illegal conduct. The facts, as alleged, could support a finding that the City Respondents minimally lined the pocket of a not-for-profit officer with a valuable developable parcel of real property located in the heart of downtown Saratoga for less than what the property was worth, in exchange for a reduced price on the not-for profits Union Avenue parcel, all at the expense of the Citys taxpayers.

Moreover, the Court should be aware that, although the City Respondents are remarkably silent on the issue, the New York State Attorney Generals Office Public Integrity Bureau, which is a bureau of the Criminal Justice division, is investigating the transactions. The Attorney Generals review is not limited to a review by the Charities Bureau to confirm that the religious corporation is getting fair value, but has expanded into investigating whether there was public official misconduct. The Public Integrity Bureau is described on the Attorney Generals website as follows:

When government actors, or private individuals acting in concert with them, engage in corruption, fraud or illegal behavior in the course of their public duties, the PIB may investigate or take enforcement action to restore the public's interest in honest government and the integrity of government officials at the state and local level. Specifically, PIB handles complex investigations into government corruption, fraud and abuse of authority. Although PIB is part of the Criminal Division, PIB brings cases pursuant to both civil and criminal authority. The Bureau can also issue reports about its investigations and findings (http://www.ag.ny.gov/bureau/public-integrity-bureau [last visited March 6, 2015]).In fact, submitted with Petitioners motion papers is an affidavit of Scott Bellcourt, who performed the appraisal estimating the value of the Collamer lot at $1.6 million, which the City ignored and attacks so vigorously on a CPLR 3211 motion. The same day that Mr. Bellcourt signed the affidavit, he was served with an Attorney General subpoena seeking documents and an interview relating to the Collamer lot transaction.

For the City Respondents to suggest that there can be no taxpayer action based on the facts as alleged and as admitted in their motion papers, is perplexing. The City Respondents have clearly known about the Attorney Generals investigation into their conduct. The investigation has been reported widely in the press, and those reports indicate that some of the City Respondents themselves have been served with subpoenas and directed to appear for interviews.

Dismissal of the taxpayer action at this stage would be inappropriate; the investigation of the Attorney Generals office into this transaction, which according to the authority of the Public Integrity Bureau as set forth on its website, could result in possible criminal consequences, is clearly sufficient for the Court to infer, on a motion to dismiss for failure to state a cause of action, possible illegal and corrupt conduct supporting Petitioners taxpayer suit claim. In public corruption and taxpayer waste claims, the underlying facts are rarely (if ever) displayed in full public view on the face of the public record. The public has a right to know the truth as to what led to these City officials gifting at least $325,000 in excess real property value to a private LLC, at the expense of the taxpayers and a not-for-profit entity. CONCLUSION

Based on the foregoing, the City Respondents motion to dismiss must be denied in its entirety.Dated: March 6, 2015

Albany, New York

______________________________

Daniel J. Tuczinski, Esq.

TUCZINSKI, CAVALIER

& GILCHRIST, P.C.

Attorneys for Petitioners54 State Street, Suite 803

Albany, New York 12207

(518) 463-3990

The term market here is used very looselythere was no marketing of the lot other than the private negotiations between City officials and persons acting on behalf of Mr. Aronson.

With respect to their motion for failure to state a cause of action, the City Respondents limit their motion to Petitioners illegal segmentation claim. They have not moved on this basis to dismiss the Fifth Cause of Action, which alleges that the August 5, 2014 resolutions must be annulled based upon violation of lawful procedure.

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