Complaint of Catskill Heritage Alliance v. New York State Department of Environmental Conservation and Crossroads Ventures

STATE OF NEW YORK
SUPREME COURT
COUNTY OF ALBANY
CATSKILL HERITAGE ALLIANCE, INC; KATHY NOLAN

AS SECRETARY/TREASURER OF THE FRIENDS OF
THE CATSKILL PARK; PUA ASSOCIATES, LLC; AND
BENJAMIN AND IDITH KORMAN, BEVERLY
RAINONE, MARY GOULD, KINGDON GOULD III,
THORNE GOULD, LYDIA BARBIERI, FRANK GOULD,
CANDIDA LANCASTER, ANNUNZIATA GOULD,
THALIA PRYOR, MELISSA GOULD AND CALEB
GOULD,
SUMMONS
Index No. ___________
Petitioners-Plaintiffs,
v.
NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION AND
CROSSROADS VENTURES, LLC,
Respondents-Defendants.
To the above named Defendants:

You are hereby summoned to answer the complaint in this declaratory
action and to serve a copy of your answer, or, if the complaint is not served with this
summons, to serve a notice of appearance, on the Plaintiffs Attorney(s) within 20 days
after the service of this summons, exclusive of the day of service (or within 30 days after
the service is complete if this summons is not personally delivered to you within the
State of New York) and in case of your failure to appear or answer, judgment will be
taken against you by default for the relief demanded in the complaint.
Dated: November 13, 2015
BOND, SCHOENECK & KING, PLLC

By:_____________________________
Robert H. Feller, Esq.
Attorney for Plaintiff
Office and P.O. Address
111 Washington Avenue
Albany, New York 12210-2211
Telephone: (518) 533-3000
TO:
New York State Department of Environmental Conservation

625 Broadway
New York State Attorney General
Office of the Attorney General
The Capitol
Albany, NY 12224-0341
Crossroads Ventures, LLC
PO Box 466
Highmount, NY 12441
STATE OF NEW YORK

SUPREME COURT
COUNTY OF ALBANY

AS SECRETARY/TREASURER OF THE FRIENDS OF
THORNE GOULD, LYDIA BARBIERI, FRANK GOULD,
GOULD,
NOTICE OF PETITION
Index No. ___________
v.
PLEASE TAKE NOTICE that upon the annexed Verified Petition of Catskill
Heritage Alliance, Inc.; Kathy Nolan as Secretary/Treasurer of Friends of the Catskill
Park; PUA Associates, LLC; Benjamin and Idith Korman; Beverly Rainone; Mary Gould;
Kingdon Gould III; Thorne Gould; Lydia Barbieri; Frank Gould; Candida Lancaster;
Annunziata Gould; Thalia Pryor; Melissa Gould and Caleb Gould (collectively
Petitioners), verified on the 10th day of November, 2015, an applicable will be made to
Albany County Supreme Court, located at 16 Eagle Street, Albany, NY 12207 on
December 15, 2015, for an Order and Judgment:
1) Vacating the July 10, 2015 Decision of Respondent Department of Environmental
Conservation and remanding this matter to an Administrative Law Judge to be
adjudicated in accordance with the rules and regulations set forth at 6 NYCRR
Part 624;
2) Annulling Ruling #15 in the December 29, 2006 Interim Decision of the Deputy
Commissioner, grant CPC/CHAs motion for reconsideration and remand the
issue of community character back to DEC for adjudication before and ALJ;
3) Reopening the comment period of the DSEIS to permit submission of public
comments on new studies filed after the early comment period expired;
4) Awarding costs and disbursements to the Petitioners-Plaintiffs;
5) As against, Respondent-Defendant DEC, award legal fees and expenses
pursuant to the New York State Equal Access to Justice Act, CPLR Article 86
PLEASE TAKE NOTICE, that pursuant to CPLR 7804(c), answering papers, if

any, shall be served at leave five (5) days before the aforesaid date of hearing pursuant
to CPLR 7804 and that reply papers shall be served at least one (1) day before the
aforesaid date of hearing.
PLEASE TAKE FURTHER NOTICE, that Oral Argument is requested.
Petitioners-Plaintiffs designate Albany County as place of trial. The basis of
venue is place of business of the defendants.
Respectfully submitted,
By:
__________________________
Robert H. Feller, Esq.
Attorneys for Petitioners-Plaintiffs
22 Corporate Woods Blvd., Suite 501
Albany, NY 12211-2503
Telephone: (518) 533-3000
Facsimile: (518) 533-3299
TO:
New York State Department of Environmental Conservation

625 Broadway
New York State Attorney General
Office of the Attorney General
The Capitol
Albany, NY 12224-0341
Crossroads Ventures, LLC
PO Box 466
Highmount, NY 12441
STATE OF NEW YORK

SUPREME COURT
COUNTY OF ALBANY

AS SECRETARY/ TREASURER OF THE FRIENDS OF
THORE GOULD, LYDIA BARBIERI, FRANK GOULD,
GOULD,
VERIFIED PETITION
AND COMPLAINT
Index No.
v.
This is a combined declaratory judgment action and proceeding pursuant to
Article 78 of the Civil Practice Laws and Rules (CPLR) to challenge the July 10, 2015
decision (the Decision) of the Commissioner of the New York State Department of
Environmental Conservation (DEC) in relation to the Applications of Respondent
Crossroads Ventures, LLC (Crossroads or the Applicant) for permits to construct and
operate a proposed development to be known as the Belleayre Resort at Catskill Park
in the towns of Shandaken, Ulster County and Middletown, Delaware County in close
proximity to the state-owned and operated Belleayre Ski Center (the AIP Project). The
Decision held that there were no issues that required adjudication pursuant to DEC
permit hearing rules, 6 NYCRR Part 624. It granted the motion filed by the DEC Staff
(Staff) to cancel the then-pending adjudicatory hearing in that matter and it denied an
350630.4 11/10/2015
outstanding motion filed by Petitioner Catskill Heritage Alliance, Inc. (CHA) seeking
reconsideration of the December 29, 2006 Interim Decision of Deputy Commissioner
Carl Johnson (the Interim Decision) which determined that issues related to the
Original Projects impact on community character did not require adjudication.
The Decision denied motions to reopen the issues conference and petitions for
party status even though those motions and petitions were not fully submitted. In a
footnote, the Decision denied Petitioner Friends of the Catskill Park (FCP) motion to
strike part of Staffs reply papers. The Decision remanded further proceeding to the
Staff with directions to issue a final environmental impact statement (FEIS) for the AIP
Project pursuant to the State Environmental Quality Review Act (SEQRA); to prepare
and issue a Findings Statement, also pursuant to SEQRA; and to issue the required
DEC permits to the Applicant as proposed in the draft permits consistent with the
Decision.
PARTIES
1. Catskill Heritage Alliance, Inc. (CHA) is a grassroots New York not-for-profit
corporation dedicated to preserving the harmony between people and wilderness
in the Central Catskills.
2. CHA was granted full party status to the DEC adjudicatory permit hearing
proceeding which resulted in the Decision.
3. CHA actively participated in the adjudicatory hearing and in the environmental
review process for both the Original Project and the AIP Project pursuant
SEQRA.
4. One or more members of CHA live in close proximity to the AIP Project and the
Decision causes those members environmental harm that differs from the public
at large.
5. Friends of the Catskill Park (FCP) is an unincorporated volunteer communitybased organization based in Shandaken, N.Y. It was formed in response to the
Original Project to ensure that the impacts would not adversely affect the
residents of the community or the quality of life in the community. Its members
include residents of the central Catskill area to be directly impacted.
6. The Secretary/Treasurer of FCP is Kathy Nolan.
7. FCP was granted full party status to the DEC adjudicatory permit hearing
proceeding which resulted in the Decision.
8. FCP actively participated in the participated in the adjudicatory hearing and in the
environmental review process for both the Original Project and the AIP Project
pursuant to the SEQRA.
9. One or more members of FCP live in close proximity to the AIP Project and the
Decision causes those members environmental harm that differs from the public
at large.
10. PUA Associates, LLC (PUA) is a New York limited liability corporation and is
the owner of the Galli-Curci Estate (the G-C Estate), a property which is listed
on both the National and State Registries of Historic Places.
11. Representatives of PUA actively participated in the SEQRA process for the AIP
Project.
12. PUA filed a petition for party status in the DEC administrative proceeding.
13. The property owned by PUA is in close proximity to the AIP Project and the
Decision causes it environmental harm that differs from the public at large.
14. Benjamin and Idith Korman (hereinafter, collectively Korman) are married
individuals that reside part-time at the G-C Estate.
15. Benjamin Korman is the property manager for PUA.
16. Both Benjamin and Idith Korman actively participated in the SEQRA process for
the AIP Project.
17. The Decision causes them environmental harm that differs from the public at
large.
18. Beverly Rainone (Rainone) is an individual residing at 316 Galli Curci Road,
Highmount, New York 12441, which is in close proximity to the AIP Project.
19. Mary Gould, Kingdon Gould III, Thorne Gould, Lydia Barbieri, Frank Gould,
Candida Lancaster, Annunziata Gould, Thalia Pryor, Melissa Gould and Caleb
Gould (hereinafter referred to collectively as the Gould Family) are individuals
who collectively own land adjacent to the Crossroads Ventures Highmount
Resort site along Route 49A and along the Fleischmanns Heights Road. They
are part time residents in the Dry Brook Valley south of the resort.
20. The New York State Department of Environmental Conservation (DEC) is a
governmental agency charged with the protection of the environment.
21. DEC served as lead agency under SEQRA for both the Original Project and for
the AIP Project.
22. DEC is also responsible for issuing several permits required for the AIP Projects
construction and operation.
23. The Decision that is the subject of this Verified Petition was issued by Joseph
Martens, in his capacity as Commissioner of DEC.
24. Upon information and belief, Crossroads Ventures, LLC (Crossroads or the
Applicant) is a New York State limited liability corporation.
25. Crossroads is the sponsor of the AIP Project and is the applicant for permits to
build and operate the project.
VENUE
26. The venue is Albany County pursuant to CPLR 7804(b) and/or CPLR 506(b).
STATEMENT OF FACTS
27. In 1999, Respondent Crossroads proposed a major new resort with two major
components in the immediate vicinity of the state-owned Belleayre Ski Center
(Belleayre) in the towns of Shandaken, Ulster County, and Middletown,
Delaware County (Collectively referenced to the Original Project) to be known
as the Belleayre Resort at Catskill Park.
28. The Original Project had two principal development areas the Big Indian
Plateau (east of Belleayre) and Wildacres (at the base of the mountain, west of
Belleayre). A small residential subdivision was also proposed in Highmount
(further up the mountain, west of Belleayre).
29. The Original Project was to consist of:
a. Big Indian Plateau (East of Belleayre Ski Resort)
i. A development of approximately 331 acres of Big Indian Plateau,

east of the Belleayre Ski Resort. It would consist of the Big Indian
County Club, including a 150-room hotel with two restaurants, a
ballroom, and spa (known as the Big Indian Resort and Spa).
Adjacent to the hotel would be an 18-hole championship golf
course.
ii. 55 buildings containing 95 detached lodging units to be built east of
Giggle Hollow. There would be a satellite golf maintenance
building and a wastewater treatment facility.
iii. Development of an area known as Belleayre Highlands to the west
of Giggle Hollow. This development would consist of 22-four unit
buildings containing a total of 88 detached lodging units. An
existing mansion would be preserved and used as a social and
activities center. Recreational amenities such as swimming and
tennis would be provided. Existing outbuildings associated with the
mansion would be maintained and adaptively reused as offices and
storage areas.
b. Wildacres (West of Belleayre, base of the mountain)
i.
Development of approximately 242 acres consisting of a 250-room

hotel complex together with shops, two restaurants, a conference
center and a spa;
ii.
An 18-hole championship golf course;
iii.
21 buildings containing 189 detached lodging units.
iv.
A childrens center, lodging unit clubhouse, a gold maintenance

building complex, a satellite golf maintenance building, a
wastewater treatment plant and a potable water treatment plant.
v.
Renovating the existing Marlowe Mansion which would be used as

a restaurant.
c. Highmount (West of Belleayre, up the mountain)

i.
A 21-lot residential subdivision with lots ranging from approximately

2-16 acres, west of the former Highmount Ski Area.
ii.
The Highmount Ski Area would be used as a wilderness center.
30. Several involved agencies vied to become lead agency for purposes of SEQRA.
31. In a decision issued on March 20, 2000, the Commissioner of DEC determined
that DEC should act as lead agency for the proposed project.
32. On or about December 10, 2003, a draft environmental impact statement (the
2003 DEIS) was accepted for public review.
33. Thereafter, the review of the draft 2003 DEIS and the related permits pending
before DEC were referred to an adjudicatory hearing before the Office of
Hearings and Mediation Services (OHMS).
34. An Administrative Law Judge (ALJ) was assigned to the case. He scheduled a
series of issues conferences further to determining what issues were
substantive and significant therefore requiring adjudication pursuant to the DEC
rules governing permit hearing; 6 NYCRR Part 624 (Part 624).
35. Pursuant to 6 NYCRR 624.4, the ALJ issued rulings which determined the issues
requiring adjudication and party status on September 7, 2005.
36. That ruling was appealed to the Commissioner. On December 29, 2006, thenDeputy Commissioner Carl Johnson, the Commissioners designee, issued an
interim decision.
37. Under Part 624, there is no provision for any further administrative appeal.
38. Thereafter, the parties attempted to negotiate a settlement of the contested
matters. Starting in 2007, then-Governor Eliot Spitzer actively participated in
these negotiations.
39. On or about September 5, 2007, some of the parties to the adjudicatory hearing
executed a document known as the Agreement in Principal (AIP). A copy of the
main text of the AIP is attached hereto as Exhibit A to this Verified
Petition/Complaint.
40. None of the Petitioners-Plaintiffs in this proceeding who were then parties to the
adjudicatory hearing executed the AIP.
41. The AIP was also executed by the Governor of the State of New York.
42. The AIP contains numerous provisions requiring DEC to take action which it is
not otherwise required to take by either statute or rule.
43. The AIP describes the AIP Project, which differs significantly from the Original
Project.
44. For example, the development at Big Indian was abandoned and Crossroads
agreed to sell the large tract of land to New York State, which would
automatically be preserved as part of the State Forest Preserve pursuant to
Article XIV of the State Constitution.
45. Several of the components that were originally proposed to be built at the Big
Indian site were now proposed to be built at Highmount, a site where minimal
development was proposed as part of the Original Project.
46. As part of the overall agreement reached under the AIP, the State agreed to
update the Unit Management Plan (UMP) for Belleayre.
47. Many of the changes to the UMP negotiated as part of the AIP would be highly
favorable to the private development.
48. For instance, the AIP calls for ski-in ski-out facilities to be linked to the private
development.
49. The AIP Project includes the following key elements that are totally different than
those proposed for the Original Proposal:
a. the development of a Highmount Spa, lodge buildings and detached
lodging units with ski-in, ski-out facilities connected to the former
Highmount Ski Center and with a ski lift and ski trails that will provide
Highmount Spa guests with access to the state-owned Belleayre Ski
Center (AIP at 16-17);
b. the use of sewage treatment plants owned and operated by the New York
City Department of Environmental Protection (DEP) to support the
development at Wildacres and Highmount (AIP at 23);
d. the revision of unit management plan for the Belleayre Ski Resort and the
construction of significant capital improvements at the Belleayre Ski
Resort, including the ski lift, ski trails and snow making equipment to
accommodate the private development (AIP at 28-29);
e. the sale of lands from Crossroads through an intermediary to the State of

New York and the deed restriction of other lands owned by Crossroads
(AIP at 24-27); and
f. the upgrading of trailheads and increased usage of state-owned lands
under the jurisdiction of the DEC (AIP at 39).
50. At the time the AIP was executed, neither the components of the AIP Project that
differed from the Original Project nor the agreed upon modifications to the UMP
for Belleayre had been subjected to any public review.
51. After the AIP was executed, the DEC issued a draft scope for a supplemental
EIS. The supplement EIS was to contain three components (1) environmental
analysis of changes to the private development project; (2) environmental
analysis of a proposed UMP which would implement the changes contemplated
in the AIP for the state-owned Belleayre Ski Center; and (3) environmental
analysis of the cumulative impacts.
52. DEC provided an opportunity for public input on the draft scope for all three
components.
53. Although the Petitioners-Plaintiffs provided comments on the scope which
requested the examination of alternatives that differed from those agreed upon in
the AIP, the DEC did not include any of the suggested alternatives in the final
scope.
54. A final scope was issued by DEC on February 28, 2008.
55. On March 28, 2008, Petitioners-Plaintiffs CHA and FCP filed a motion in the
context of the DEC adjudicatory proceeding seeking the recusal of the
10
Commissioner. The motion alleged that because the Governor executed the
AIP and the Commissioner serves at the pleasure of the Governor, it would be
inappropriate for the Commissioner to rule on issues relating to the AIP Project.
A copy of the motion is attached as Exhibit B to the Petition.
56. The motion was based on institutional conflicts that the Commissioner had
arising out of the grand bargain reached in the AIP which would prevent him from
objectively ruling on the AIP project.
57. The motion also argued that the terms of the AIP included findings that either
were or could be relevant to the approval of the AIP Project.
58. For example, the AIP concluded that the modified project represents a new,
lower impact, alternative which minimizes or avoids the potential for significant
environmental impacts identified by the several of the Parties and others during
the public comment period and issues conference and which the State has
determined will provided significant economic benefits to the Central Catskill
Region. (AIP, 10).
59. Such findings, which legally bound the AIP signatories were highly relevant to the
SEQRA findings that DEC would be required to make.
60. In addition, in exchange for the road map for project approval, Crossroads
agreed to convey the large tract on land known as the Big Indian to the State to
be incorporated into the Forest Preserve.
61. The fact that the AIP was executed by the Governor and that the Commissioner
served at the pleasure of the Governor raised concerns that decisions related to
the project approval might be politicized.
11
62. The motion sought to ensure that the processing of the applications for the
modified project would be done in accordance with established agency rules and
procedures and that any decisions would be made by officials have no stake
(political or otherwise) in the projects success.
63. By Decision dated April 29, 2009, the Commissioner denied the motion. A copy
of his decision is attached as Exhibit C to the Petition.
64. In March of 2013, DEC issued a draft supplemental EIS (DSEIS). A period
was provided to submit public comments thereon.
65. After this public comment period was closed, Respondent Crossroads submitted
at least four (4) new reports to Respondent DEC. Because these reports were
submitted after the public comment period had closed, they were never subjected
to public comment or scrutiny.
66. As the major new components of the AIP Project were proposed at the
Highmount site, the comments submitted by the Petitioners-Plaintiffs focused to a
large extent on these new features.
67. In September of 2014, DEC staff issued a preliminary final EIS. This document
contained, among other things, a response to the public comments.
68. Contemporaneously, DEC staff filed a motion in the context of the pending
adjudicatory proceeding requesting that the adjudicatory hearing be cancelled.
That motion was directed to the Assistant Commissioner in charge of OHMS. A
copy of that motion, together with supporting papers, is attached as Exhibit D.
12
69. The motion was submitted to the Assistant Commissioner for OHMS, not to the
assigned ALJ as is required by the DEC hearing regulation. (See 6 NYCRR
624.6(c)(1))
70. The grounds for relief as stated in the Staff motion was ...[T]he issues
determined to be subject to adjudication pursuant to the Interim Decision of the
Deputy Commissioner dated December 29, 2006, in the above referenced
matter, have been addressed by modifications to the project as described in the
Final EIS and Cumulative Impact Statement for the Belleayre Resort at Catskill
Park or are no longer relevant and staff have otherwise determined that there are
no substantive and significant issues requiring an adjudication under Part 624 of
6 NYCRR with respect to the modified project.
71. On information and belief, in the entire history of DEC adjudications, neither staff
nor any other party has never filed such a motion. This motion sought the
cancellation of a hearing where the commissioner has issued a final nonappealable ruling holding there were issues for adjudication. The motion also
sought any potential new issues occasioned by the projects redesign to be
dismissed in the context of a motion rather than an issues conference. Both of
these elements are unprecedented in DEC hearing practice.
72. On information and belief, absent an agreement of the parties, a DEC
adjudicatory hearing has never been cancelled when there is a commissioners
decision finding issues for adjudication, so long as those issues are not moot.
73. On information and belief, there has never been a case in DEC administrative
hearing practice where the question of whether there are issues for adjudication
13
was determined in the context of a motion rather than in the context of an issues
conference.
74. Although the hearing rules allow parties to file motions, there are no provisions
that establish standards for ruling on a motion to cancel a hearing. By contrast,
there are very specific rules and jurisprudence associated with petitions for party
status, determinations regarding adjudicability of issues, and conducting and
reopening issues conferences. (See generally 6 NYCRR 624.4; see id.
624.5(d)(Rulings on party status will be made by the ALJ (emphasis added))
75. Staff supported its application with an affidavit from Daniel Whitehead and a
Memorandum of Law. Both documents focused entirely on the issues that were
set for adjudication in 2006.
76. With respect to any new issues that might arise due to the major redesign of the
project, Staffs submittals merely state there are no substantive and significant
issues. No factual basis for that conclusion is provided.
77. The Assistant Commissioner issued a memorandum dated September 29, 2014
(the September 29 Memo) a copy of which is attached as Exhibit E.
78. The memorandum provided direction on a number of items related to the pending
motion. For example, the September 29 Memo:
a. Established a date by which all parties were to respond to the staff motion.
b. Ruled that the Department Staff, as the proponent of the motion, had the
burden of proof and granted it the right to file a reply to any responses to
its motion.
14
c. Directed that the responses to the Staff motion should state positons on
what issues that were set for adjudication in 2006 were rendered moot or
were adequately addressed by a project modification. With respect to
issues that did neither, directed that the parties provide support for the
contention that the issue continued to be substantive and significant.
d. Directed that, in the event a party contended that a new issue was raised
by the modified proposal, it should explain how that issue is substantive
and significant and present an offer of proof in support.
79. With respect to items (c) and (d), the memorandum did not merely require the
party to provide rebuttal to the Staff motion but rather it required them to provide
affirmative proof to support the proposition that the issue (existing or new) was
substantive and significant.
80. The September 29 Memo also directed that any parties who signed the AIP
identify whether the project was inconsistent with the terms of the AIP. It did so
notwithstanding the fact compliance with the AIP is wholly beyond DEC
jurisdiction and is completely irrelevant to whether there were any issues
requiring adjudication.
81. There is no authority in DEC hearing rules to require parties opposing a motion to
provide affirmative proof. Quite to the contrary, the rules place the burden of
proof on the sponsor of the motion. (See 6 NYCRR 624.9[b][4] [The burden of
proof to sustain a motion will be on the party making the motion]).
82. The September 29 Memo was directed only to the existing parties to the
proceeding and made no provision for the possibility of other parties participating
15
the administrative hearing. It excluded several individuals who were remote

from the main component of the Original Project and had expressed interest in
participating in future administrative proceedings because they either owned or
resided at properties in close proximity to the vastly-expanded Highmount
development.
83. For example, it excluded Petitioner-Plaintiff Korman a resident of the G-C
Estate, a property that is listed on the registries of both the State and Federal
Historic Properties and which is directly across the street from the entrance to the
newly-proposed Highmount development and immediately adjacent to the
proposed conference center.
84. It also excluded Petitioner-Plaintiff Rainone and Petitioner-Plaintiff Gould Family;
both of whom live in close proximity to the AIP Project, and both of whom
petitioned for party status.
85. After the Assistant Commissioner issued the September 29 Memo, counsel for
Petitioner-Plaintiff Korman sought clarification of the September 29 memo by
letter dated October 2, 2014. A copy of this letter is attached as Exhibit F.
86. The letter stated that no one other than the assigned ALJ had the authority to
make rulings or otherwise conduct the adjudicatory hearing. It questioned why
the Staff motion was not submitted to the assigned ALJ and why someone other
than the assigned ALJ was making rulings on the conduct of the hearing. See id.
87. No response was ever received to this letter.
88. On October 5, 2014, the Assistant Commissioner issued another memorandum
(the October 5 Memo) which stated, among other things, that individuals or
16
entities who were not parties in the prior proceedings could not participate with
respect to the Staff motion unless they submitted a petition for party status that
petition was subsequently granted the October 5 memo. A copy of that
memorandum is attached as Exhibit G.
89. On or around November 17, 2014 the parties filed their answers to the Staff
motion.
90. On or around November 17, 2014, PUA Associates, the owner of the Galli-Curci
Mansion, Rainone and the Gould Family filed petitions to intervene in the
adjudicatory proceeding. The petitions were directed to the assigned ALJ,
Richard Wissler.
91. On or around November 17, 2014, FCP filed a motion to reopen the issues
conference. The motion was directed to the assigned ALJ, Richard Wissler. A
copy of this motion, together with supporting papers, is attached as Exhibit H.
92. On or around November 17, 2014, CHA filed a cross-motion to reopen the issues
conference. The motion was directed to the assigned ALJ, Richard Wissler. A
copy of this cross-motion, together with supporting papers, is attached as Exhibit
I.
93. On November 19, 2014, the Assistant Commissioner sent an email stating that
the Commissioner had directed that the further processing of these petitions
were indefinitely suspended until after the submission of the Department Staffs
reply. A copy of that e-mail is attached as Exhibit J.
94. On December 3, 2014, counsel for Petitioner-Plainitiff FCP sent a letter to
Commissioner Martens stating that the DEC hearing rules vested the authority to
17
conduct the hearing, rule on motions and petition solely with the ALJ. A similar
letter was sent by counsel for Plaintiff-Petitioner CHA on December 4, 2014.
Copies of these letters are attached as Exhibit K.
95. The letter requested that all rulings on pending motions and petitions be made by
the presiding ALJ and that another ALJ be assigned if ALJ Wissler was unable or
unavailable to serve.
96. The letter pointed out that Governors Executive Order No. 131 of 1989 (EO
131) directs that every agency insure its proceedings are impartial, efficient,
timely, expert and fair.
97. EO 131 has been continued by every Governor since its original issuance, and is
currently in effect.
98. In its preamble, EO 131 states that administrative adjudication must meet due
process standards and should resolve disputes in a manner that is fair and
appears fair to the public.
99. It also states that the fairness of administrative adjudication and the appearance
of fairness are particularly important when a state agency is a party to the
administrative proceeding.
100.
EO 131 also directs each State Agency to develop an adjudication plan
to help ensure that the objectives set forth in EO 131 are achieved. A copy of the
adjudication plan adopted by DEC in response to EO 131, which incorporates EO
131, is attached hereto as Exhibit L.
18
101.
In this subject case, not only is the State a party to the proceeding but the
Governor himself, on behalf of the State of New York, executed a key document
(the AIP) governing the redesign of the entire project.
102.
Notwithstanding the directions of the EO 131 and its particular applicability
to this case where the State is involved in multiple and potentially conflicting
roles, Respondent DEC chose the occasion of this project to completely
circumvent the requirements of its own hearing rules and to eliminate the role of
the ALJ.
103.
Moreover, on information and belief, the procedures employed by DEC in
this case have never been used in the history of the agencys administrative
hearing process.
104.
Those procedures were not only absent from DECs hearing rules, but
were in direct violation and/or contradiction of those rules.

105.
The DEC made all of these adjustments to its hearing process without
providing prior notice to any of the parties nor any opportunity for those parties to
be heard on the use of these unprecedented procedures.
106.
On December 4, 2014, Petitioner CHA sent a letter to Commissioner
Martens expressing similar concerns. In addition, CHA cited case law

prohibiting officials responsible for hearing appeals from interfering with the
independent adjudicatory of fact. A copy of this letter is attached as Exhibit M.
107.
The letter pointed out that, the DEC rules provide an as-of-right appeal to
the Commissioner on any rulings on issues or party status. The letter pointed
19
out that it was improper for an appellate authority to interfere in the deliberations
of the original trier of fact.
108.
No response was ever received to either FCPs December 3 letter or
CHAs December 4 letter.

109.
On December 8, 2014, Department Staff filed reply papers related to its
motion to cancel the adjudicatory hearing.

110.
The Staff reply papers contend that the other parties have the burden of
proof to demonstrate there are issues for adjudication notwithstanding the fact
that the Assistant Commissioners September 29, 2015 memorandum stated
unequivocally that the Staff had the burden of proof on all issues related to the
motion and, in fact, provided the Staff the opportunity to file reply papers based
on that very premise. The Assistant Commissioner denied any opportunity for
other parties to file reply papers based on the fact that the Department Staff, not
they, bore the burden of proof.
111.
Although the November 19, 2015 e-mail from the Assistant Commissioner
indicated that the Commissioner had suspended the timeframes in the DEC
hearing rules for responding to all motions for party status and reconvening the
issues conference pending the Staff reply filing, no dates for filing responses to
these motions were ever established.
112.
On December 17, 2014, FCP filed a motion to strike the portion of the
DEC Staff reply which raised a new basis to oppose the adjudication of aesthetic
impacts to the Galli-Curci Estate for first time in its reply pleadings. The motion
20
was filed with the assigned ALJ, Richard Wissler. A copy of that motion, together
with supporting papers, is attached as Exhibit N.
113.
On December 22, 2014, the Assistant Commissioner sent a memorandum
to the parties which indicated, for the very first time, that the proceeding was
before the Commissioner and not before the ALJ. No reason was provided for
this significant change from the requirements of Part 624. A copy of this
Memorandum is attached hereto as Exhibit O.
114.
All of the filings to the Staff motion had already been submitted when the
Assistant Commissioner stated that the pending motions and petition would be
ruled upon by the Commissioner, and not the assigned ALJ.
115.
Notwithstanding the multiple inquiries of the parties and letters quoting the
hearing rule requirements for a presiding ALJ, this was the first time in the almost
four months that the Staff motion was pending that there was any statement
regarding who was presiding.
116.
The December 22 memorandum provided no citation to the hearing rules
or to any other authority permitting this procedure nor did it provide any reason
for not following the requirements of the hearing rules or EO 131.
117.
The memorandum also stated that no further motions would be permitted
in this proceeding without leave of the Commissioner. The hearing rules do not
require a party to get permission prior to filing a motion. The memorandum
provides no citation to the hearing rules or any other authority for imposing this
requirement. Moreover, it provides no reason for doing so.
118.
Responses to FCPs motion to strike were filed on December 29, 2014.
21
119.
FCP filed a reply on February 24, 2015.
120.
On or about July 1, 2015, Commissioner Martens announced that he was
resigning effective July 23, 2015.

121.
On July 10, 2015, Commissioner Martens issued a decision granting the
staff motion and directing that the EIS be finalized and that all permits be issued
consistent with his decision. A copy of the Decision is attached hereto as Exhibit
P.
122.
Although no schedule was ever established for the petitions for party
status and the motion to reopen the issues conference, these requests were
denied in the Decision.
123.
The motion to strike was denied without any stated basis by the
Commissioner in a footnote to his July 10, 2015 Decision.

124.
On or around September 2, 2015 the Department Staff issued a notice of
adoption of a final EIS.

AS AND FOR A FIRST CAUSE OF ACTION:
THE DECISION WAS PROCEDURALLY DEFECTIVE BECAUSE DEC
REGULATIONS REQUIRE THE STAFF MOTION BE RULED ON BY AN ALJ
IN THE FIRST INSTANCE, NOT THE COMMISSIONER. WITH LIMITED
EXCEPTIONS NOT RELEVANT HERE, THE COMMISSIONERS AUTHORITY
WITH RESPECT TO DEC ADJUDICATORY HEARINGS IS APPELLATE IN
NATURE
125.
Petitioners-Plaintiffs repeat and reallege the allegations made in
paragraphs 1 through 124 of this Verified Petition/Complaint as though each

paragraph was fully stated herein.
126.
DECs own hearing procedure regulations provide that [m]otions and
requests prior to the hearing must be filed in writing with the ALJDuring the
22
course of the hearing, motions may be made orally except where otherwise
directed by the ALJ. If no ALJ has been assigned to the case, the motion must
be filed with the Chief ALJ of the Office of Hearings. (6 NYCRR 624.6(c)(1)
(emphasis added)).
127.
There is no provision in the hearing procedures that allows for motions of
any sort to be made to or decided by the Commissioner or the Assistant

Commissioner.
128.
To the contrary, Part 624 limits the Commissioners role in the permit
hearing process to an appellate one. (See 6 NYCRR 624.8(d)). Pursuant to

the rules, the Commissioners role is to review appeals of decisions issued by
ALJs, not to make decisions in the first instance.
129.
On information and belief, in the history of OHMS, there has never been a
single case where a ruling whether adjudicable issues exist or a petition for party
status has been made by the Commissioner in the first instance.
In every case,
the ruling has been made an ALJ.

130.
Respondent DEC acted in a manner that was arbitrary and capricious, and
in violation of its own hearing procedures as set forth in 6 NYCRR Part 624 and
Executive Order 131.
AS AND FOR A SECOND CAUSE OF ACTION
THE COMMISSIONER IMPROPERLY WAIVED THE REQUIREMENT THAT
THE STAFF MOTION BE RULED UPON BY AN ALJ
131.

23
132.
In the Decision, the Commissioner states that,

To the extent assertions are made that the regulations require
submission of staffs motion to an ALJ, the hearings regulations
themselves expressly provide that [t]o avoid prejudice to any party
. any rule may be modified by the commissioner upon
recommendation of the ALJ or upon the commissioners own
initiative (6 NYCRR 624.6(g)). Exhibit P at page 12. Executive
Order No. 131 protects the role of the independent ALJ and the
Adjudication Plan adopted by DEC in response to the Executive
Order also reinforces that independence.
133.
The provisions in Part 624 that require that motions be decided by ALJs is
a key guarantor of fairness and due process to the parties, particularly those that
are not aligned with the interests of the State.
134.
No party had requested that any rule in Part 624 be waived.
135.
The Commissioner waived the rule sua sponte and without providing any
notice to the parties or an opportunity to be heard.

136.
In waiving the rule, the Commissioner held that [I]t is, of course,
prejudicial to require an applicant to bear the expense and delay of an adjudicatory

hearing if all proposed issues have been satisfactorily addressed in the record.
(Exhibit P at p. 12).
137.
He made this finding without providing any notice of his intent to waive
the rule or an opportunity to the parties to be heard on the issue of waiver.
138.
The role of the ALJ in DEC adjudicatory hearings is fundamental as a
guarantor of a fair and impartial hearing and this ruling did away with this
protection without providing any notice or opportunity to be heard.
139.
Petitioners-Plaintiffs CHA and FCP had no opportunity to contest whether the
applicant would be prejudiced under these circumstances or to demonstrate

whether they would be prejudice by the waiver.
24
140.
The waiver by the Commissioner is a violation of fundamental procedural
due process rights, the regulations in Part 624 and the terms of Executive Order
No. 131, including DECs Adjudication Plan adopted thereunder.
AS AND FOR A THIRD CAUSE OF ACTION:
THE PROCEEDING WAS FLAWED IN THAT THE PARTIES WERE ONLY
INFORMED THAT THE STAFF MOTION WOULD BE RULED UPON BY THE
COMMISSIONER AFTER ALL SUBMISSIONS WERE MADE
141.

142.
DEC rules provide that the ALJ will rule on all motions. (See 6 NYCRR
624.6[c]).
143.
The Petitioners-Plaintiffs made all of their filings in opposition to the Staff
Motion based on those provisions.

144.
The Petitioners-Plaintiffs followed the rules and submitted all responses to
the motion to the assigned ALJ.

145.
Petitioners-Plaintiffs repeatedly raised the question of the potential
usurpation of the role of the ALJ during the course of these proceedings.
146.
Each time they were raised, these concerns were ignored.
147.
On December 17, 2014, FCP filed a motion with the ALJ asking that
certain portions of the Staffs reply papers be struck.

148.
Shortly thereafter, the Assistant Commissioner informed the parties for the
very first time that this proceeding was before the Commissioner, not the ALJ.
25
No reason was cited by the Assistant Commissioner for handling the Staff motion
this way nor did he cite to any authority for doing so.
149.
In addition, the Assistant Commissioner informed the parties that, contrary
to the requirements of Part 624, any future motions would require the
Commissioners permission before they could be filed.
150.
This rule was applied without any party requesting such relief.
151.
This rule was applied without any party having an opportunity to provide
arguments in opposition to this procedure.

152.
This same rule was not applied to the Staff when it made its motion to
cancel the adjudicatory hearing.

153.
When the Assistant Commissioner issued his memorandum, all authorized
filings by the Petitioners-Plaintiffs had been made.

154.
During the entire period in which the Petitioners-Plaintiffs were responding
to the Staff motion, they understood that the Part 624 rules applied. All filings
were made under this assumption.
155.
If the OHMS and the Commissioner had determined to amend and modify
the Part 624 requirements as they applied to this proceeding, due process
requires that the parties be informed prior to making their filings.
156.
If OHMS and the Commissioner had determined to amend and modify the
Part 624 requirements as they applied to this proceeding, due process requires
that the parties be provided notice of intent to do so and the opportunity to be
heard prior to implementing such drastic changes.
26
157.
The failure of the OHMS and the Commissioner to notify the parties of
these changes prior to filing their responses and the failure to provide any notice
and opportunity to be heard before these drastic changes were implemented is a
violation of substantive and procedural due process.
AS AND FOR A FOURTH CAUSE OF ACTION:
THE DECISION VIOLATES DEC REGULATIONS IN THAT IT DISPENSES
WITH THE ADJUDICATION OF MATTERS IN CONTROVERSY THAT WERE
PREVIOUSLY SET FOR ADJUDICATION IN AN IMPERMISSIBLE MANNER
158.

159.
On December 29, 2006, then-Deputy Commissioner Carl Johnson, on
behalf of the Commissioner, issued an interim decision which identified

numerous issues for adjudication in the Matter of the Application of Crossroads
Ventures for Permits to Construct and Operate a Proposed Development to be
Known as the Belleayre Resort.
160.
Under the DEC hearing regulations, the Interim Decision represents a final
non-appealable agency ruling on the issues set for adjudication in the matter.
161.
Under the DEC hearing regulations, the only circumstance under which an
issue identified by the Commissioner can be resolved without adjudication is

where all the parties to the adjudication reach a stipulation of that issue.
162.
Petitioners-Plaintiffs CHA and FCP were full parties to the adjudicatory
hearing in Matter of the Application of Crossroads Ventures for Permits to

Construct and Operate a Proposed Development to be Known as the Belleayre
27
Resort. At no point did either Petitioner-Plaintiff stipulate to settle any of these

issues.
163.
The agency has also ruled in administrative decisions interpreting this
rule that issues set for adjudication that are made moot by subsequent project
modification do not need to be modified. In their Memoranda of Law, the
Petitioners-Plaintiffs acknowledged this exception and did not contest it.
164.
On information and belief, in the decades of DEC administrative permit
hearings there is not a single instance where an issue set for adjudication by a
decision of the Commissioner was not adjudicated unless that issue was either
(a) resolved by stipulation of all the parties or (b) rendered moot by subsequent
project modifications.
165.
A number of specifically identified issues were set for adjudication in the
Matter of Crossroads by the Deputy Commissioners December 29, 2006 Interim

Decision. None of these issues were resolved by stipulation of all the parties.
Although the issues relative exclusively to the development at the Big Indian
Plateau are moot, those involving Wildacres are not moot.
166.
Nonetheless, the Decision challenged in this lawsuit unilaterally ruled that
these issues, and others relating to the modified project, did not require
adjudication. The Commissioner simply dismissed them.
167.
This ruling is inconsistent with the requirements of Part 624 and prior
agency precedent.
28
AS AND FOR A FIFTH CAUSE ACTION:

THE COMMISSIONER ERRED IN GRANTING STAFFS MOTION AS IT WAS
DEFECTIVE AS A MATTER OF LAW
168.

A. ISSUES SET FOR ADJUDICATION IN THE 2006 INTERIM
DECISION
169.
The Staff Motion requests the cancellation of the adjudicatory hearing
pursuant to 6 NYCRR Part 624.4(c)(5). That section states that [i]f the ALJ
determines that there are no adjudicable issues, the ALJ will direct that the
hearing be canceled and that the staff continue processing the application to
issue the requested permit.
170.
As a matter of law, the cited section could never be adequate grounds for
relief as, in this very proceeding, the ALJ ruled that there were issues that
required adjudication. Moreover, as admitted by both the Department Staff and
the Commissioner, several of the issues identified by the ALJ and upheld by the
Deputy Commissioner were not moot.
171.
Although the Petitioners-Plaintiffs identified this defect in their responses
to the motion, the Staff never amended its motion nor cited to any other rule or
statute as the basis for the requested relief.
172.
In the Decision, the Commissioner ignores the authority and basis set
forth by Staff in its motion, which authority was vigorously contested by the
Petitioners-Plaintiffs.
29
173.
Instead, the Commissioner sua sponte changed the basis of the Staff
Motion to cancel the adjudicatory hearing as one for reconsideration of the 2006
Interim Decision.
174.
Staff never requested reconsideration of the 2006 Interim Decision and
the basis for its motion stands in stark contrast to the motion filed by CHA in
2007 which explicitly requested reconsideration of that Interim Decision.
175.
The Commissioner improperly granted Staffs Motion by treating it as
motion for reconsideration (which it was not) and without determining whether the
grounds cited by the Staff in support of its own motion were legally sufficient.
176.
The Commissioner took this action without any prior notice to any of the
parties.
177.
Accordingly, none of the parties had any opportunity to be heard on
whether the well-established standards in civil practice relating to reconsideration

were applicable in this instance.
B. NEW ISSUES RELATED TO THE REDESIGN OF THE
PROJECT
178.
Due to the fact that an area that had only been the subject of minor
development (Highmount) became one of two major development areas as a

result of the project changes, in order to grant Staffs motion to cancel the
hearing, it was necessary to demonstrate that there were no new issues that had
arisen as a result of the substantial project modifications.
179.
The Staff Motion provides no evidence whatsoever with respect to the
absence of issues arising out of the substantial project modifications. It merely
30
contains a conclusory statement that there are no such issues without citing to
any evidentiary foundation whatsoever.
180.
The DEC hearing regulations place the burden of proof on the party
making a motion.
181.
It is well settled that a party bearing the burden of proof on a motion must
provide a prima facie case in its motion to sustain the motion.

182.
Petitioners-Plaintiffs FCP and CHA requested that the motion be
dismissed on the grounds that no such prima facie case was presented by Staff
in its moving papers.
183.
Notwithstanding, the fact that the Petitioner lodged this objection, the
Commissioner failed to dismiss the Staff motion.

AS AND FOR A SIXTH CAUSE OF ACTION:
THE COMMISSIONER IMPROPERLY SHIFTED THE BURDEN TO THE NONMOVING PARTIES
184.

185.
DEC rules unequivocally impose the burden of proof on the moving party.
(See 6 NYCRR 624.9[b][4]).

186.
In this case, the moving party was DEC Staff, which made a motion to
cancel the pending adjudicatory hearing.

187.
Therefore, in order to prevail in their motion, the Staff had the burden to
demonstrate that there were no issues related to project modifications which

warranted adjudication.
31
188.
The Staff Motion contains absolutely no evidence in support of the
proposition that the project modifications do not raise issues requiring

adjudication. Accordingly, the Staff Motion did not establish a prima facie case in
this regard.
189.
Where, as here, Staff failed to meet this burned (i.e. failed to demonstrate
a prima facie case), the Petitioners-Plaintiffs bore no burden whatsoever.

190.
Notwithstanding this fact, the September 29 Memo of the Assistant
Commissioner improperly shifted the burden to Petitioners-Plaintiffs by requiring

them to demonstrate that the issues set for adjudication in 2006 as well as new
ones arising out of the modifications to the project were substantive and
significant.
191.
As the staff motion failed to identify its prima facie case, the September 29
Memo violated the hearing rules and fundamental principles of due process by
requiring a substantial response to a motion which lacked any identifiable prima
facie case.
192.
In order to oppose the Staff Motion, the Petitioners-Plaintiffs were
improperly required to submit affirmative evidence demonstrating that issues

proposed for adjudication met the regulatory test as being substantive and
significant.
AS AND FOR A SEVENTH CAUSE OF ACTION:
THE COMMISSIONER IMPROPERLY ALLOWED STAFF TO SUBMIT PART OF ITS
PRIMA FACIE CASE ON REPLY
32
193.

194.
After the Petitioners-Plaintiffs submitted their opposition to the Staffs
motion to cancel, and come forward with the evidence supporting the need to
adjudicate certain issues, the Commissioner allowed Staff an opportunity to
reply.
195.
In its Reply, the Staff asserted for the very first time that the Galli-Curci
Mansion was not afforded any protection against visual intrusions under the
State or Federal Historic Preservation Acts nor under the DECs visual impacts
policy because it was privately owned.
196.
The rationale had never previously been offered in any written document
provided by Staff and hence was not addressed in Petitioners submittal.

197.
At this stage of the proceeding, Petitioner had no right to respond to this
new rationale.
198.
Petitioner FCP moved to have this new rationale struck in light of the fact
that it was raised for the first time on Reply and sought, in the alternative, an
opportunity to file a sur-reply rebutting this newly offered rationale.
199.
The Commissioner denied this motion by way of a footnote in his July 10,
2015 Decision. (See July 10, 2015 Decision, p. 40, n. 31).

200.
By considering evidence that was offered for the first time on Reply, and
by failing to rule on the motion to strike, Respondent DEC acted in a manner that
33
was arbitrary and capricious and in violation of its own hearing rules/procedures
and of due process.
201.
Further, Plaintiff-Petitioners were denied due process in that they never
had any opportunity to rebut any part of this element of the Staffs case.
202.
By permitting the introduction of evidence in DEC Staffs reply that was
never a part of any written document provided by DEC and which is an essential
part of Staffs prima facie case, the Decision demonstrates further that it was not
possible for Petitioners-Plaintiffs to be on notice of the basis for Staffs motion.
AS AND FOR AN EIGHTH CAUSE OF ACTION:
THE DECISION APPLIES THE WRONG STANDARD IN RULING ON STAFFS
MOTION: IT MISAPPLIES THE BURDENS OF PROOF AND IT MISAPPLIES
THE SUBSTANTIVE AND SIGNIFICANT STANDARD
203.

204.
In reaching a decision on the various issues proposed by the Petitioners-
Plaintiffs, the Decision repeatedly concludes that the Petitioners-Plaintiffs failed

to provide enough support to show that the proposed issue is substantive and
significant.
205.
As Staff has the burden of proof on this motion, the Commissioner is
required to examine whether the Staff has put forth sufficient evidence to show
that proposed issues are not substantive or significant, not the other way around.
206.
There is no provision in the hearing rules or elsewhere permitting the
Commissioner to create any presumptions in favor of the Staff.
34
207.
In most instances, the Decision does not even identify Staffs prima facie
case in support of its motion, much less analyze its sufficiency.

208.
Even in its examination of the Petitioners-Plaintiffs evidence, it fails to
apply the substantive and significant standard.

209.
That standard requires that an issue be adjudicated if, after examination of
all evidence for and against, a sufficient doubt remains regarding the applicants
ability to meet a regulatory standard or adequately mitigate an impact under
SEQRA that a reasonable person would inquire further.
VISUAL IMPACTS TO GALLI-CURCI ESTATE
210.
Even in the context of an issues conference where the petitioning party
has the burden of proof, if there is sufficient doubt that the application meets
regulatory standards such that a reasonable person would inquire further, a
substantive issue is raised for adjudication.
The Decisions holding that there
was no substantive issue ignores the proof submitted and improperly defers to a
letter issued by the New York State Office of Parks Recreation and Historic
Preservation (OPRHP).
211.
It is uncontested that the G-C Estate is a property that is listed (not merely
eligible for listing) on both the State and National Registers of Historic Properties.
212.
The DEC Visual Impact Policy requires the agency to assess the potential
impact of a project on visual and aesthetic resources within a radius of 5 miles

from the project.
213.
The VIP identifies properties on the National and State Registries of
Historic Properties as the number one aesthetic resource in the State.
35
214.
Notwithstanding the historic registry status of the G-C Estate and the fact
that the G-C Estate would be only 50 feet from the modified development at
Highmount, the draft supplemental EIS that was circulated for public comment
contained no analysis of the visual impacts on the property.
215.
The owner of the G-C Estate submitted comments on the impacts to the
property in response to the public notice.

216.
In its response to comments on the DSEIS, DEC provided a very rough
sketch which it claimed showed that the project would cause no visual impacts to
the G-C Estate.
217.
In its response to Staffs motion, Petitioner FCP submitted an extensive
series of photos and profiles.

218.
Staff was permitted to reply to FCPs submittal. It provided no rebuttal to
the profiles but merely argued that no impact analysis was necessary because
the G-C Estate was privately owned.
219.
In the Decision, the Commissioner held that the visual impact to the G-C
Estate were no greater than those it would have suffered under the original
project.
220.
There is no citation to the record supporting this conclusion and the record
is devoid of any evidence to that effect.

221.
The Commissioner also dismissed the issue because OPRHP had
advised that there were no impacts to the G-C Estate requiring mitigation. The
acceptance on the conclusion in the OPRHP letter without critical analysis is an
36
error of law in that it fails to apply the substantive and significant standard
required by Part 624.
222.
The Commissioner ignored the entire analysis submitted by the FCP.
223.
These actions demonstrate that the Decision fails to apply the substantive
and significant standard as defined and interpreted by DEC rules and prior
administrative decision.
AS AND FOR A NINTH CAUSES OF ACTION:
THE COMMISSIONER IMPROPERLY REFUSED TO PROCESS PETITIONS
FOR PARTY STATUS AND MOTIONS TO REOPEN THE ISSUES
CONFERENCE
224.

225.
The DEC regulations provide the opportunity for the filing of party status
petitions at any point in the proceeding. (See 6 NYCRR 624.5).

226.
Due to the significant modifications in the project since the hearing was
adjourned, individuals in close proximity to the expanded development in

Highmount, several entities who had not previously been involved as a party
sought party status.
227.
One of those filing a petition for party status was PUA Associates who
owned the property feet away from the Highmount development. PetitionersPlaintiffs Rainone and the Gould Family also filed petitions for party status.
228.
On November 17, 2014, Petitioner FCP filed a motion to reopen the issues
conference. Petitioner CHA joined in this motion.
37
229.
In an e-mail dated November 19, 2014, the Assistant Commissioner
conveyed the Commissioners decision to hold all petitions for party status in
abeyance until after he ruled on Staffs motion.
230.
The hearing rules contain specific time frameworks for addressing
petitions for party status and motions. There is no provision permitting such
petitions and motions to be held in abeyance indefinitely.
231.
All the petitions for party status and the motion to reopen the issues
conference were never fully submitted due to the fact that Commissioner held
them in abeyance until his Decision effectively made them moot.
232.
Notwithstanding the fact that the motions were not fully submitted, the
Commissioner impermissibly denied them in his Decision.

AS AND FOR A TENTH CAUSE OF ACTION:
DECS REFUSAL TO ADJUDICATE THE ISSUE OF ADVERSE IMPACTS TO
EXISTING COMMUNITY CHARACTER WAS ARBITRARY AND CAPRICIOUS AND
AFFECTED BY ERROR OF LAW
233.

234.
The SEQRA regulations at 6 NYCRR 617.7(c)(1) list the elements
of the environment that must be considered in the SEQRA process.

These include: (i) a substantial adverse change in existing air quality,
ground or surface water quality or quantity, traffic or noise levels; a
substantial increase in solid waste production; a substantial increase in
potential for erosion, flooding, leaching or drainage problems; ... (iv) the
38
creation of a material conflict with a community's current plans or goals as

officially approved or adopted; ... [and] (v) the impairment of the character
or quality of important historical, archeological, architectural, or aesthetic
resources or of existing community or neighborhood character; ... .
235.
In these regulations, the impairment of ... existing community or
neighborhood character (6 NYCRR 617.7(c)(1)(v)) is set forth in the

regulations as an element of the environment which is separate from other
elements such as traffic levels, noise levels, and air quality. 6 NYCRR
617.7(c)(1)(i).
236.
The drafters of the regulations specifically intended for community
character to be considered as an issue in its own right, separate and apart

from other, more specific, issues. See also ECL 8-0105(6).
237.
Following the issues conference, ALJ Wisslers Ruling on Issues
and Party Status found that the adverse impacts of the project on the
existing character of the community was a substantive and significant
issue, as defined by 6 NYCRR 624.4(c), that required adjudication.
Matter of Crossroads Ventures, LLC, Ruling on Issues and Party Status of
the ALJ, September 7, 2005 (Ruling #15). His detailed analysis of the
issue concluded:
This analysis, however, for the purpose of SEQRA review, leads to
a fundamental question of balance, which must be the subject of
further inquiry through the adjudicatory process. In particular, at
this point, certain questions remain unanswered, including:
1. Will the project, if developed as proposed, overwhelm the
existing hamlets and villages to the significant detriment of their
present quality of life?
39
2. If such significant detriment to the quality of life of the hamlets

and villages would result, should the proposed resort be reduced in
scale or its elements be reconfigured in a manner so as to avoid
this consequence?
3. What, if any, alternative configuration of the proposed resort can
be achieved that would still provide the critical economic mass
necessary for the resort's success and drive the economic
revitalization of the hamlets and villages?
Such questions of balance as they concern impacts to community
character are clearly within the purview of SEQRA review and
appropriate for adjudication. Indeed, such an inquiry reflects the
legislature's intent in the enactment of SEQRA. ECL 8-0103(7)
states:
It is the intent of the legislature that the protection and
enhancement of the environment, human and community
resources shall be given appropriate weight with social and
economic considerations in public policy. Social, economic,
and environmental factors shall be considered together in
reaching decisions on proposed activities.
RULING NUMBER FIFTEEN
CPC has raised substantive and significant issues with respect to
the impact the proposed project will have on the community
character of the hamlets and villages in the area of the proposed
project. The issues are substantive as they address questions of
balance that can only be resolved through further inquiry. The
issues are significant since they could result in a major modification
of the proposed project. Moreover, their resolution is essential
before any determination may be made pursuant to 6 NYCRR
617.11(d)(2) and (5).
238.
On appeal, Deputy Commissioner Johnson overruled that finding
and held that the issue of impacts to existing community character would
not be adjudicated. Matter of Crossroads Ventures, LLC, Interim
Decision, December 29, 2006, pp. 71-73 (Ruling #15).
40
239.
Thereafter, the Catskill Preservation Coalition (CPC) made a
motion to the Commissioner to reconsider this finding.1 Before that motion

was ruled upon, and before any answers to the motion were filed, the
Applicant made a motion to suspend any action by the Commissioner on
the motion to reconsider while settlement negotiations were pending.2
That motion was granted by the Commissioner. Matter of Crossroads
Ventures, LLC, Commissioner Ruling, November 9, 2007.
240.
On September 10, 2014, the DEC Staff moved to dismiss
CPC/CHAs motion to reconsider. In its answer to that motion dated

November 17, 2014 (Affidavit of John W. Caffry, pp.13-29 (Caffry
Affidavit)), CHA opposed that motion, and argued for the granting of the
long-delayed motion to reconsider.
241.
CHA demonstrated (Caffry Affidavit 37-39) that the Deputy
Commissioners Ruling #15 incorrectly assumed that impacts to

community character are merely side effects of various discrete
environmental issues, so that community character need not be
separately adjudicated, and that the Deputy Commissioner also erred
when he held that DEC should merely defer to local land use plans and
zoning on this issue. Caffry Affidavit 40-52.
See Notice of Motion for Reconsideration, Affirmation in Support of Motion for Reconsideration by
Cheryl A. Roberts, Esq., and Catskill Preservation Coalition Memorandum in Support of Motion for
Reconsideration, all dated January 29, 2007. (The Notice of Motion contains a typographical error stating
that the date is January 29, 2006.)
2
These negotiations resulted in the signing of the AIP by some, but not all, of the parties to the hearing.
The Petitioners-Plaintiffs in this proceeding were not signatories to the AIP.
41
242.
CHA also demonstrated that the recent changes to the project and
the filing of the DSEIS had not eliminated the need to adjudicate this
issue. Caffry Affidavit 32-35.
243.
The primary witness that testified for CPC on this issue in the 2004
issues conference was Professor Thomas Daniels. Matter of Crossroads

Ventures, LLC, Ruling on Issues and Party Status of the ALJ, September
7, 2005 (Ruling #15). It was Professor Daniels professional opinion that
the scale of the proposed Belleayre Resort is too large for this region of
small settlements and rural landscape. Caffry Affidavit 32-33.
244.
Based largely on this testimony, ALJ Wissler determined that this
issue should be adjudicated. Id. In 2014 Professor Daniels reviewed the

Draft Supplemental EIS (DSEIS) and related materials, and reaffirmed that
opinion, despite the changes that had been made to the project. Caffry
Affidavit 33.
245.
The ALJs ruling approved adjudication of whether there were ways
to reduce or avoid such adverse impacts on community character:

What, if any, alternative configuration of the proposed resort
can be achieved that would still provide the critical economic
mass necessary for the resort's success and drive the
economic revitalization of the hamlets and villages? Matter
of Crossroads Ventures, LLC, Ruling on Issues and Party
Status of the ALJ, September 7, 2005 (Ruling #15).
246.
CHAs fiscal impact expert, Michael Siegel, also reviewed the
DSEIS and examined that issue. It was his opinion that construction of
the full project would not succeed economically and could adversely
impact local businesses, but that elimination of the Highmount section of
42
the project, and building only the Wildacres section, could be economically
feasible. Caffry Affidavit 34.
247.
Therefore, the issue of the projects adverse impacts to the existing
character of the community has not been rendered moot by the recent
changes to the project or the preparation and filing of the DSEIS.
248.
On July 10, 2015, the Commissioner denied CPC/CHAs motion to
reconsider, relying on the reasons set forth in the Deputy Commissioners

Ruling #15. Decision, p. 40.
249.
DECs failure to adjudicate the substantive and significant issue of
adverse impacts to existing community character, as that issue was

defined by ALJ Wissler, was arbitrary and capricious and affected by error
of law.
250.
The Deputy Commissioners Ruling #15 in Matter of Crossroads
Ventures, LLC, Interim Decision, December 29, 2006, and the denial of
CPC/CHAs motion to reconsider by Commissioner Martens (Decision, p.
40) should both be annulled, and the issue of adverse impacts to existing
community character should be remanded to DEC for adjudication
pursuant to 6 NYCRR Part 624.
AS AND FOR AN ELEVENTH CAUSE OF ACTION
DECS REFUSAL TO ADJUDICATE THE ISSUE OF ALTERNATIVES WAS
ARBITRARY AND CAPRICIOUS AND AFFECTED BY ERROR OF LAW
251.
Petitioners-Plaintiffs- Plaintiffs repeat and reallege the allegations
made in paragraphs 1 through 250 of this Verified Petition/Complaint

as though each paragraph was fully stated herein.
43
252.
The SEQRA Regulations at 6 NYCRR 617.9(b)(5)(v) requires that
an EIS must include:

(v) a description and evaluation of the range of reasonable
alternatives to the action that are feasible, considering the
objectives and capabilities of the project sponsor. The description
and evaluation of each alternative should be at a level of detail
sufficient to permit a comparative assessment of the alternatives
discussed. The range of alternatives may also include, as
appropriate, alternative:
(a) sites;
(c) scale or magnitude; [and]
(d) design
253.
Upon the completion of the SEQRA process an involved agency
may only approve the reasonable alternative ... that avoids or minimizes
adverse environmental impacts to the maximum extent practicable. 6
NYCRR 617.11(d)(5).
254.
Following the issues conference, ALJ Wisslers Ruling on Issues
and Party Status found that the issue of alternatives was a substantive
and significant issue, as defined by 6 NYCRR 624.4(c), that required
adjudication. Matter of Crossroads Ventures, LLC, Ruling on Issues and
Party Status of the ALJ, September 7, 2005 (Ruling #18). His detailed
analysis of the issue concluded:
As noted at the outset, 6 NYCRR 617.9(b)(5)(v) mandates that the
DEIS must contain "a description and evaluation of the range of
reasonable alternatives to the action that are feasible, considering
the objectives and capabilities of the project sponsor. The
description and evaluation of each alternative should be at a level
of detail sufficient to permit a comparative assessment of the
alternatives discussed." In this matter it is clear that the DEIS is
deficient. Though by no means an exhaustive list, this requires
an examination of certain questions not addressed in the DEIS, for
example:
44
1. What are the physical environmental impacts that would

result from the development of the Big Indian site only?
2. What are the physical environmental impacts that would
result from the development of the Wildacres site only?
As to the economic analysis undertaken by the Applicant,
questions have been raised by both CPC and the City as to
the proper application of the IRR analysis methodology and
the results thereby obtained. But in this economic analysis,
certain questions remain unanswered by the DEIS. Again,
while not an exhaustive list, these economic questions would
include:
1. Will the project as proposed overwhelm the local
economies?
2. Is the local labor pool adequate to meet the needs of the
project as proposed, or would a smaller project provide a
more reasonable match between jobs and available labor?
3. How will the project affect local housing costs and the
availability of affordable housing for project employees?
4. Will the tax revenues generated by the project cover the
cost of the municipal services local communities will have to
provide?
These environmental and economic matters raise issues that
are substantive and significant, requiring further inquiry.
RULING NUMBER EIGHTEEN
Both CPC and the City have raised issues with respect to
the adequacy of the alternatives analysis in the DEIS that
are both substantive and significant. The lack of sufficient
environmental and economic detail to allow the comparative
analysis contemplated by SEQRA is substantive requiring
further inquiry. Moreover, this deficiency in the DEIS is
significant since it can affect permit issuance. Accordingly,
alternatives to the proposed project is a matter for
adjudication. (emphasis added)
255.
On appeal, Deputy Commissioner Johnson modified that finding
and upheld the ruling that the issue of alternatives, as modified, should be
45
adjudicated. Matter of Crossroads Ventures, LLC, Interim Decision,

December 29, 2006, pp. 71-73 (Ruling #18). In particular, he held that:
Accordingly, applicant is directed to prepare a supplement to
its alternatives analysis that addresses the environmental
impacts of alternative layouts which will be considered
during the adjudicatory phase of the proceeding. Although
I am not designating a specific number of alternatives that
would be included in this supplement, I would direct
applicant to include an environmental evaluation of impacts
with respect to the two alternatives already referenced in the
DEIS (the one golf course and one hotel complex alternative
and the east resort/west resort alternative) and such
additional smaller scale alternatives that would ensure that a
reasonable range is considered. In that regard, applicant
may wish to include, but is not obligated to do so, one or
more of the alternatives that have been referenced by other
parties in this proceeding (see, e.g., CPC Petition for Party
Status, April 23, 2004, at 46).
With respect to the questions posed by the ALJ on
alternatives (see Ruling, at 150 [environmental questions #16]), applicant should address the initial two questions in its
supplemental analysis of the east resort/west resort
alternative. I do not see any need for applicant to address
the remaining four questions that were posed unless they
relate specifically to an alternative layout that applicant
presents in the supplemental alternatives analysis.
Applicant may, in its supplemental alternatives analysis,
include an economic evaluation with respect to each
alternative presented, in addition to what is already
presented in the DEIS. However, the primary focus of the
supplemental alternatives analysis should be directed to
provide the information necessary to allow for a comparative
environmental assessment of the alternative layouts.
I concur with the ALJ that the alternatives analysis is a
matter for adjudication, but modify the ruling to limit the
adjudication to alternative layouts on Wildacres Resort and
Big Indian Plateau. Furthermore, the primary focus of the
adjudicatory hearing on this issue should be the
environmental impacts associated with the alternative
layouts rather than the economic feasibility of the
alternatives. (emphasis added)
46
256.
On September 10, 2014, the DEC Staff moved to cancel the
adjudicatory hearing.
257.
In its answer to the DEC Staffs motion, CHA demonstrated that the
recent changes to the project and the filing of the DSEIS had not
eliminated the need to adjudicate the issue of alternatives. Caffry
Affidavit, p. 9.
258.
CHA also made an additional offer of proof, consisting of several
experts reports, to demonstrate that the issue of alternatives to the

current version of the project should be adjudicated, particularly the
significantly lower environmental impacts of a Wildacres-only project on
stormwater, community character, traffic, air quality, public health, and
surface waters. Caffry Affidavit 66.
259.
On July 10, 2015, the Commissioner held that the issue of
alternatives would not be adjudicated. Decision, pp. 23-25.

260.
The Decision erred, inter alia, because it excused the Applicant
from preparing an analysis of a Wildacres-only alternative, which both ALJ

Wissler and Deputy Commissioner Johnson had ordered the Applicant to
do.
261.
In doing so, the Decision ignored the adverse impacts of the
stormwater runoff from the Highmount site relative to those that would be
caused by a Wildacres-only alternative (Caffry Affidavit 66). Decision,
pp. 23-25.
47
262.
In doing so, the Decision also relied solely on the Applicants
analysis of the feasibility of a Wildacres-only project and ignored the

analysis prepared by CHAs expert, Michael Siegel (Caffry Affidavit 34,
66), thereby failing to weigh the relative credibility of these two analyses.
Decision, pp. 23-25.
263.
DECs failure to adjudicate the substantive and significant issue of
alternatives, as that issue was defined by ALJ Wissler and Deputy

Commissioner Johnson, and as further demonstrated by CHAs additional
offer of proof, was arbitrary and capricious and affected by error of law.
264.
The ruling by Commissioner Martens that denied adjudication of the
issue of alternatives (Decision, pp. 23-25) should be annulled, and the

issue of alternatives should be remanded to DEC for adjudication pursuant
to 6 NYCRR Part 624.
AS AND FOR A TWELFTH CAUSE OF ACTION:
DECS REFUSAL TO ADJUDICATE THE ISSUE OF ADVERSE IMPACTS
CAUSED BY STORMWATER RUNOFF WAS ARBITRARY AND
CAPRICIOUS AND CONTRARY TO LAW
265.
paragraphs 1 through 264 of this Verified Petition/Complaint and

Complaint as though each paragraph was fully stated herein.
266.
In, his ruling on December 29, 2006, Deputy Commissioner Carl
Johnson, issued a final decision on issues for adjudication. One of these

issues concerned stormwater impacts (Issues Ruling 9, Whitehead
Affidavit, Paragraph 39).
48
267.
The stormwater issues involved a series of sub-issues including:
(a) the adequacy of the HdroCAD model and its assumed inputs and
design points, (b) the adequacy of the Big Indian SWPPP and the design
of its various stormwater management controls, (c) the identification of the
stormwater flow paths on the project site, (d) the level of pre-and postdevelopment stormwater flows, and (e ) the basis for the waiver of the
requirement to have no more than five acres exposed during construction
at any one time. Id.
268.
Although, subpart (b) is no longer applicable, subparts (a), (c), (d)
and (e) are not moot. Petitioners-Plaintiffs have not stipulated to the
dismissal of stormwater subpart issues (a), (c), (d) and (e).
269.
DEC Staff certified that applicants SDEIS was complete in May,
2013, and permitted public review on that document.

270.
At the same time, the public was permitted to comment on two
additional documents issued by DEC which were; the draft Belleayre

Mountain Ski Center Unit Management Plan and accompanying DEIS,
and the Cumulative Impact Analysis associated with the two related
projects.
271.
Mark Millspaugh, a Professional Engineer licensed in the State of
New York, and formerly with DEC, from Sterling Environmental, reviewed
the entire set of documents and provided substantive comments,
particularly with respect to Applicants analysis of stormwater
management. See Comments Regarding Belleayre Ski Center Unit
49
Management Plan and the Modified Belleayre Resort at Catskill Park

(Sterling Report).
272.
Petitioners-Plaintiffs submitted this report to DEC pursuant to the
public review process in July 2013.

273.
Mr. Millspaughs review determined that exclusive of skiable terrain,
more than 30% of the area to be developed for Highmount would be on

slopes steeper than 20%. Sterling Report at 6.
274.
The Sterling Report identified a number of flaws in Applicants
analysis of potential stormwater impacts from the Highmount resort and

development of the former Highmount Ski Center.
275.
These flaws included problems with culverts, ditches and projected
flows along CR- 49A, failure to evaluate the potential effects of high
impact storms that already had occurred in the project area, and problems
with the HydroCAD model.
276.
In addition, issues related to the HydroCAD model involved
misapplication of calculations, incorrect inputs and failure to heed key

messages that the HydroCAd program uses to provide important feedback
regarding the model. Sterling Report at 12-14.
277.
The draft FEIS contained an updated stormwater report prepared
by Applicant that attempted to address the flaws identified in the Sterling

Report.
278.
Applicants new report was never subject to notice and comment, or
public review.
50
279.
Mr. Millspaugh reviewed this new report by Applicant and the
stormwater management portions of the draft FEIS.

280.
In an affidavit dated November 12, 2014, (Millspaugh Affidavit),
Mr. Millspaugh testified that Applicants HydroCAD model still was flawed
and underestimated existing flow conditions at certain design points.
281.
The Decision acknowledges that Staff did not dispute that at some
of the design points designated in Applicants stormwater management

plan, post-development stormwater volume would exceed predevelopment existing conditions. Decision at p. 21.
282.
Mr. Millspaugh stated that the draft FEIS did not accurately account
for potential added runoff from snowmelt from the adjacent Highmount ski
area and did not account for stormwater impacts caused by a combination
of tree-cutting and snowmaking efforts for Highmounts re-developed ski
slopes.
283.
He also noted the failure to provide calculations regarding
increased sedimentation or runoff that could occur during extreme weather

events such as back- to- back storms or a major rain event during a spring
thaw.
284.
Mr. Millspaugh also reviewed proposed improvements to two
drainage points along CR-49A that specifically impact Petitioner Rainone.

285.
If proposed improvements are implemented, they will increase
capacity at these two culverts by 285% and 310%. Mr. Millspaugh

concludes that increasing the capacity at these drainage points will
51
increase the risk of flooding and damage to the Rainone property in the
future.
286.
He further notes that applicants failure to evaluate greater than
Type 2 storms will potentially result in improper stormwater design and

increased damage to the Rainone property.
287.
In September 2014, New York States Attorney General, Eric
Schneiderman, issued a report entitled, Current and Future Trends in

Extreme Rainfall Across New York State.
288.
The report states in part, the best available scientific projections of
precipitation trends suggest that extreme rainfall events will continue into
the future more of them, more often. Our analysis suggests some of
these projections may even underestimate the magnitude of future
increase.
289.
The report cites to three case studies, one of which concerns the
Catskills, in the immediate vicinity of the proposed resort. That case study
described when Hurricane Irene and Tropical Storm Lee moved through
the area and decimated the nearby town of Fleischmanns.
290.
According to the Schneiderman report, official rain gauges in the
area measured over 11.6 inches in a 24-hour period, while unofficial

gauges measured over 18 inches in 24 hours. Id at p. 12.
291.
The Decision dismissing the stormwater issues raised by
Petitioners-Plaintiffs, relies heavily on two new affidavits dated November

20, 2014, and December 8, 2014, that were proffered by DEC after DEC
52
Staff had filed the Motion to Cancel and after Petitioners-Plaintiffs had filed
their response to the Staff motion.
292.
Petitioners-Plaintiffs were not provided the opportunity to evaluate
the substance and validity of these affidavits or the ability to respond to

the new information contained within the affidavits.
293.
The Decision improperly attempts to adjudicate, on a fragmented
record, the highly detailed and complex stormwater issues associated with
Applicants construction project to be built on the steep slopes of
Highmount.
294.
The Decision, based on new reports submitted by Applicant, that
were not subject to public notice and comment, and after-the-fact

affidavits filed by DEC Staff, that were not subject to scrutiny and
response by Petitioners-Plaintiffs, shows that DEC did not take the
requisite hard look at this key environmental impact as required by
SEQRA.
295.
These issues are not moot and are in need of adjudication by an
independent trier of fact.

296.
The Decision does not fully address all key stormwater issues
raised by Petitioners-Plaintiffs including the effects that the development

of the former Highmount Ski center will have on stormwater runoff.
297.
The Commissioner did not fully evaluate the effect that snow melt,
tree-cutting and snowmaking on the steep slopes of the Highmount Ski

area development will have on stormwater runoff.
53
298.
SEQRA demands that agencies take a hard look at all of an
actions potential environmental impacts.

299.
At the end of the day, the Agency must certify that the action is one
that avoids or minimizes adverse environmental effects to the maximum

extent practicable, and that environmental impacts will be avoided or
minimized to the maximum extent practicable by incorporating as
conditions to the decision those mitigative measures that were identified
as practicable. 6 NYCRR Part 617.11 (d)(5).
300.
The Commissioners refusal to analyze the effect that high intensity
storms, that already have occurred at the project site and have been
predicted with greater frequency by New York States Attorney General,
will have on post project stormwater runoff is arbitrary, capricious and
contrary to DECs own regulations.
301.
For the reasons stated above, Petitioners-Plaintiffs request the
Court grant the Eleventh Cause of action, overturn the Decision by

Commissioner Martens on stormwater, and remand the issue of adverse
impacts due to stormwater runoff to DEC for adjudication pursuant to 6
NYCRR Part 624.
AS AND FOR A THIRTEENTH CAUSE OF ACTION:
DECS RESPONSE TO PUBLIC COMMENTS INCLUDED SIGNIFICANT
NEW STUDIES THAT WERE NEVER SUBJECT TO PUBLIC
COMMENTS AS REQUIRED BY SEQRA
54
302.
paragraphs 1 through 301 of this Verified Petition/Complaint and

Complaint as though each paragraph was fully stated herein.
303.
In response to the public comments on the DSEIS, DEC required
the Applicant to perform additional studies with respect to issues that were
addressed by studies included in the DSEIS.
304.
These studies used different approaches and methodologies than
the studies offered in the DSEIS for public comment.

305.
The additional studies respecting the control of stormwater control
and the economic viability of the project were particularly extensive.

306.
The DEC failed to provide any additional public notice period for
comment on these studies.

307.
SEQRA requires the opportunity to review and comment on all
significant material supporting the impact analysis for the action under
review.
308.
Where significant studies are not included in the draft EIS offered
for public comment, the lead agency is obligated to reopen the comment
period.
309.
Any other action would undermine the publics right to meaningful
review and comment.

310.
DECs failure to reopen the public comment period is arbitrary and
capricious and constitutes an error of law.
55
WHEREFORE, the Petitioners-Plaintiffs respectfully request:

1. The Court determine that the granting of the Staff Motion was arbitrary and
capricious, an abuse of discretion and affected by errors of law.
2. The Court determine that the denial of the motions, cross-motions and petitions
filed by the Petitioners-Plaintiffs was arbitrary and capricious, an abuse of
discretion and affected by errors of law.
3. The Court determine that the relief and direction in the Decision were arbitrary
and capricious, an abuse of discretion and affected by errors of law.
4. The Court declare that the actions taken by the DEC with respect to the Staff
Motion violate the procedural and substantive due process rights of the
Petitioners-Plaintiffs protected by the United States and New York State
Constitutions.
5. The Court declare that the actions taken by the DEC with respect to the motions,
cross-motions and petitions filed by Plaintiffs-Petitioners violate the procedural
and substantive due process rights of the Plaintiffs-Petitioners protected by the
United State and New York State Constitutions.
6. The Court direct that the DEC reopen the public comment period on the DSEIS
to accept comments on new studies submitted after the close of the initial public
comment period.
7. The Court annul the Deputy Commissioners Ruling #15 in Matter of Crossroads
Ventures, LLC, Interim Decision, December 29, 2006, annul the denial of
CPC/CHAs motion to reconsider by Commissioner Martens (Decision, p. 40),
grant the motion for reconsideration and remand the issue of adverse impacts to
56
existing community character to the ALJ for adjudication pursuant to 6 NYCRR

Part 624.
8. The Court reverse the granting of the Staff motion and the denial of all the
motions, cross-motions and petitions filed by the Petitioners-Plaintiffs and
remand the proceeding back to DEC with instructions that:
a. An ALJ be appointed to process and rule on the Staff motion, PetitionersPlaintiffs motions, cross-motions and petitions.
b. The ALJ preside at all proceedings regarding this application and that the
rules contained in 6 NYCRR Part 624 be strictly adhered to.
c. The finalization of the EIS be revoked, the public comment period be
reopened and further action on the DSEIS be remanded to the OHMS
pending the outcome of the administrative proceeding before DEC. An
award of the costs and disbursements of this action/proceeding;
9. The Court award costs and disbursement of this proceeding.
10. Against respondent DEC only, an award of legal fees and other expenses
pursuant to the New York State Equal Access to Justice Act, CPLR Article 86.
11. Such other further relief as this Court should deem just and proper.
Respectfully submitted,
Albany, N.Y.

By:_____________________________
Robert H. Feller, Esq., Of Counsel
Attorneys for Plaintiffs-Petitioners
111 Washington Avenue
Telephone: (518) 533-3000
57
VERIFICATION
STATE OF NEW YORK
COUNTY OF ALBANY
)
) ss.:
)
ROBERT H. FELLER, an attorney of the State of New York, affirms under

penalty of perjury that the following is true:
1.
I am of counsel to Bond, Schoeneck & King, PLLC, attorneys for
the Petitioners-Plaintiffs in this action.

2.
The foregoing Verified Answer is true to my knowledge, information
and belief, and the grounds for my belief are correspondence and other writings
furnished to me by the Petitioners-Plaintiffs and interviews with the Petitioners-Plaintiffs.
3.
This verification is not made by the Petitioners-Plaintiffs because
they are not located in the county where I have my office.
____________________________________
Robert H. Feller
Sworn to before me this

10th day of November, 2015.
______________________________
Notary Public
58

Complaint of Catskill Heritage Alliance v. New York State Department of Environmental Conservation and Crossroads Ventures

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Complaint of Catskill Heritage Alliance v. New York State Department of Environmental Conservation and Crossroads Ventures

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STATE OF NEW YORK

CATSKILL HERITAGE ALLIANCE, INC; KATHY NOLAN

To the above named Defendants:

BOND, SCHOENECK & KING, PLLC

New York State Department of Environmental Conservation

STATE OF NEW YORK

CATSKILL HERITAGE ALLIANCE, INC; KATHY NOLAN

PLEASE TAKE NOTICE, that pursuant to CPLR 7804(c), answering papers, if

New York State Department of Environmental Conservation

STATE OF NEW YORK

CATSKILL HERITAGE ALLIANCE, INC; KATHY NOLAN

i. A development of approximately 331 acres of Big Indian Plateau,

Development of approximately 242 acres consisting of a 250-room

An 18-hole championship golf course;

21 buildings containing 189 detached lodging units.

A childrens center, lodging unit clubhouse, a gold maintenance

Renovating the existing Marlowe Mansion which would be used as

c. Highmount (West of Belleayre, up the mountain)

A 21-lot residential subdivision with lots ranging from approximately

The Highmount Ski Area would be used as a wilderness center.

e. the sale of lands from Crossroads through an intermediary to the State of

the administrative hearing. It excluded several individuals who were remote

EO 131 also directs each State Agency to develop an adjudication plan

Notwithstanding the directions of the EO 131 and its particular applicability

Moreover, on information and belief, the procedures employed by DEC in

were in direct violation and/or contradiction of those rules.

On December 4, 2014, Petitioner CHA sent a letter to Commissioner

Martens expressing similar concerns. In addition, CHA cited case law

No response was ever received to either FCPs December 3 letter or

CHAs December 4 letter.

On December 8, 2014, Department Staff filed reply papers related to its

motion to cancel the adjudicatory hearing.

On December 22, 2014, the Assistant Commissioner sent a memorandum

The December 22 memorandum provided no citation to the hearing rules

The memorandum also stated that no further motions would be permitted

Responses to FCPs motion to strike were filed on December 29, 2014.

FCP filed a reply on February 24, 2015.

On or about July 1, 2015, Commissioner Martens announced that he was

resigning effective July 23, 2015.

On July 10, 2015, Commissioner Martens issued a decision granting the

Commissioner in a footnote to his July 10, 2015 Decision.

On or around September 2, 2015 the Department Staff issued a notice of

adoption of a final EIS.

Petitioners-Plaintiffs repeat and reallege the allegations made in

paragraphs 1 through 124 of this Verified Petition/Complaint as though each

DECs own hearing procedure regulations provide that [m]otions and

There is no provision in the hearing procedures that allows for motions of

any sort to be made to or decided by the Commissioner or the Assistant

hearing process to an appellate one. (See 6 NYCRR 624.8(d)). Pursuant to

the ruling has been made an ALJ.

Petitioners-Plaintiffs repeat and reallege the allegations made in

paragraphs 1 through 130 of this Verified Petition/Complaint as though each

In the Decision, the Commissioner states that,

No party had requested that any rule in Part 624 be waived.

notice to the parties or an opportunity to be heard.

prejudicial to require an applicant to bear the expense and delay of an adjudicatory

the rule or an opportunity to the parties to be heard on the issue of waiver.

The role of the ALJ in DEC adjudicatory hearings is fundamental as a

Petitioners-Plaintiffs CHA and FCP had no opportunity to contest whether the

applicant would be prejudiced under these circumstances or to demonstrate

The waiver by the Commissioner is a violation of fundamental procedural

Petitioners-Plaintiffs repeat and reallege the allegations made in

paragraphs 1 through 140 of this Verified Petition/Complaint as though each

The Petitioners-Plaintiffs made all of their filings in opposition to the Staff