State of New York Supreme Court County of Ulster

STATE OF NEW YORK SUPREME COURT COUNTY OF ULSTER

HILARY ADLER, JOHN BOHAN, GERALYN TORRONE, LAURIE WILLOW, MARK GUENTHER, NEIL RINDLAUB, KATHRYN ADORNEY, JUDITH BOZSIK, EUGENE BOZSIK, GAIL YOUNG, PATRICIA HAZLETT, JONATHAN LOZIER, RICHARD SMITH AND KATHRYN NAVY,

Petitioner-Plaintiffs,

For a Judgment Pursuant to Articles 30 and 78 of the Civil Practice Law and Rules

-against-

PLANNING BOARD OF THE TOWN OF GARDINER and SHINRIN YOKU, LLC,

Respondent-Defendants.

Supreme Court Ulster County RJI # 55-19-00268 Index# 19-579 Hon. James P. Gilpatric, Supreme Court Justice Presiding

Appearances:

Emily B. Svenson, Esq. Attorney for Petitioner-Plaintiffs 42 Catharine Street, Suite C-1 07 Poughkeepsie, New York 12601

David C. Brennan, Esq. and Kristin L. Pratt, Esq. Michael A Moriello, Esq. Y oung/Sommer LLC Riseley and Moriello, PLLC Attorneys for Defendant-Respondent Attorney for Defendant-Respondent Planning Board of the Town of Gardiner Shinrin Y oku LLC Executive Woods, Five Palisades Drive Ill Green Street Albany, New York 12205 Post Office Box 4465 Kingston, New York 12402

1 '

DECISION/ORDER/JUDGMENT

JAMES P. GILPATRIC, J.:

Petitioners commenced this hybrid Article 78/declaratory judgment action seeking to annul determinations set forth in a Resolution of respondent-defendant Planning Board of the Town of Gardiner that approved a Special Permit & Site Plan Application of respondent defendant Shinrin Y oku, LLC to develop 141.3 acres of a former tree nursery into a lodging and event venue to be known as "Heartwood." The parcel is comprised oftwo lots that are bordered to the south by the Shawangunk Kill, a river that has a steeply sloped and treed riverbank, and the property is zoned "RA" (Residential-Agricultural). Petitioners are homeowners whose lands are adjacent to or near the parcel who "chose to purchase or renovate homes in this area because

of its quiet and natural beauty" (Petition, ~ 7). Petitioners assert that they "trusted that the Town's zoning would protect their enjoyment of their land, and their investment, by only allowing low-density residential development or similar low-intensity use on adjacent

properties" (Svenson Affirmation, ~ 4). The petition includes thirteen causes of action seeking judicial review of the Planning Board's State Environmental Quality Review Act (hereinafter "SEQRA") review and Site Plan review, and the Planning Board's approvals of a special permit, an easement and lot line revision. The Planning Board opposes the petition on the grounds that it conducted a thorough review of Shinrin Y oku' s application that included coordinated review with multiple other State and local agencies and entities, and that its resolution was not arbitrary and capricious or legally flawed. In a separate submission, Shinrin Y oku generally agrees with the Planning Board's arguments and further asserts that two causes of action are barred by the statute of limitations or the doctrines of exhaustion of administrative remedies or res judicata. The facts and procedural history relating to the Planning Board's review of the Heartwood application for Site Plan and Special Use Permit Approvals as set forth in the record are not in dispute. A preliminary proposal for the Heartwood project was first presented to the Planning Board at its meeting on January 17, 2017 (seeR- Vol.l, p.76). The project was

descriped by the developer ~ follows: "(A] new ecological lodging facility comprised of 40 eco-cabins and 30 cabins a well as a separate lobby structure. The eco-cabins will be situated on permanent platforms, primarily within the treed areas of the site, featuring hotel-quality bedding and furnishings. All cabins will include en-

2 suite bathrooms. Accessory to the cabins and eco-cabins will be a main lobby structure, food and beverage facility, and event barn for various uses such as yoga and meditation classes, company retreats, workshops and limited weddings for guests of Heartwood only. The site will also feature a vegetable farm, a pool and potential amenities such as bocce courts, tennis courts and spa facilities. Vehicular access roads and pedestrian pathways will connect the site, with access to the Shawangunk Kill and views of the Shawangunk Mountains . . . The concept of the facility is to create an experience for guests that is both highly engaged with the natural setting yet refined and comfortable."(id., p.525) . . In the record, the proposed project is frequently referred to as one that will host "glamping," a blended word for "glamorous camping." Aspects of the Heartwood proposal were addressed at nearly 30 meetings of the Planning Board over a two-year period from January 2017 to January 2019, which included two workshop meetings and a public hearing (see id., pp.33-36). SEQRA review was completed in May 2018. The Planning Board began to process Shinrin Yoku's Site Plan and Special Permit application thereafter (see Freiband Affidavit,~ 4), and the resolution permitting the Heartwood project was approved by the Planning Board on January 17,2019, by a vote of six to one. The record submitted in this judicial proceeding contains nearly 3,500 pages of materials relating to the application, including numerous public comments, maps, renderings and photographs, reports and correspondence from a multitude of engineers and other relevant professionals, as well as recommendations and correspondence from many other state, county and local agencies and entities.1 Tensions within the Gardiner community are evident in the record. Petitioners are concerned about the immediate effect of Heartwood on their residential property and their daily lives. There are residents who have grave concern about the pace and volume of development in the Town of Gardiner and the impact such development may have upon the very nature of their small town, as well as residents who support development in the Town as inevitable and as an economic driver in general and who expressed support for the Heartwood project in particular. As noted above, the petition challenges the Planning Board's resolution on 13 specific grounds. 2 Many of the causes of action set forth in the petition challenge the sufficiency of the 1. The entire review process conducted by the Planning Board is summarized in the affidavit of Paul Colucci in opposition to the petition/complaint. Colucci has been a member of the Planning Board since 2008 and its Chairman since April 2017 ~ Colucci Affidavit, ~ I). 2. Petitioners' submissions on the petition/complaint include a plethora of contentions regarding a multitude of issues related to the Heartwood project, often blending several different legal theories into an argument about the alleged insufficiency of the Planning Board's review. Slightly different arguments on specific issues can be found in the record, in the petition, and in the parties' briefs. In order to organize, particularize, and address the arguments 3 \

Planning Board's SEQRA review. SEQRA requires an agency such as the Planning Board to give due consideration to preventing environmental damage when reviewing proposals that may be found to affect the quality of the environment (see ECL § 8-0103 [9]). Having identified the Heartwood project as a SEQRA "Type I" activity (seeR- Vol.3, p.383), respondent-defendant Shinrin Yoku' s application included a Full Environmental Assessment Form (EAF) dated March 1, 2017fuh, pp. 368-389), and the Planning Board circulated a SEQRA notice of intent to serve as lead agency fuh, pp. 532-535). Following the Planning Board's coordinated SEQRA review,3 the Planning Board adopted a SEQRA Negative Declaration and Notice of Determination of Non-Significance dated May 15, 2018fuh, pp.4-20). Petitioners assert that the Planning Board did not take the requisite "hard look" at the noise that would emanate from Heartwood, the effect of the project on the wildlife habitat, and the effect of Heartwood's water usage upon neighboring wells. Petitioners further contend that environmental effects from the proposed farm operation on a portion of the property was not considered prior to the Planning Board's issuance of the Negative Declaration. SEQRA requires a lead agency such as the Planning Board to evaluate the environmental significance of a proposed Type I action such as Heartwood, to determine whether the proposed action may include the potential for "at least one significant environmental impact" (6 NYCRR 617.7 [a] [ 1]), or whether "there will be no adverse environmental impacts or that the identified adverse environmental impacts will not be significant" (6 NYCRR 617.7 [a] [2]). The lead agency is tasked with "thoroughly analyz[ing] the identified relevant areas of environmental concern" (6 NYCRR 617.7 [b] [3]) and then providing a written statement that contains a "reasoned elaboration" of its determination regarding the potential significance of an environmental impact" ( 6 NYCRR 617.7 [b] [4 ]). The scope ofjudicial review of a lead agency's performance of its SEQRA obligations is well-established: In a statutory scheme whose purpose is that the agency decision makers focus attention on environmental concerns, it is not the role of the courts to weigh the desirability of any action or choose · among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively."

that are properly before the Court on this matter, the issues will be addressed as they are set forth as causes of action in the pleading. 3. The local, county and state agencies that were identified as "involved" agencies as well as the list of"interested" agencies is included in an Addendum to the EAF ~Record, vol. 3, pp 384-386). 4 (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 416-17 (1986]). More specifically, when engaged in review of the issuance of a negative declaration, the role of the Court: "is limited to ascertaining whether the board 'identified the relevant areas of environmental concern, took a "hard look" at them, and made a "reasoned elaboration" of the basis for its determination' (Matter of Jackson v. New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986] quoting Aldrich v. Pattison. 107 A.D.2d 258, 265 (1985]; accord Matter of Eadie v. Town Bd. of Town ofN. Greenbush. 7 NY3d 306,318 [2006])"

(Matter of Friends of the Shawangunks. Inc. v Zoning Bd. of Appeals of Town of Gardiner, 56 AD3d 883, 884-85 [3d Dept 2008]). Judicial review of whether a lead agency took the requisite "hard look" does not involve the Court's substitution of its own judgment over that of the agency with regard to substantive matters, but requires the Court to review whether the agency conducted an investigation that sufficiently and reasonably exercised its discretion so as to make a reasoned elaboration as to the effect of a proposed action on a particular environmental concern" (Matter of Akpan v Koch, 75 NY2d 561, 571 [1990]). "[A] court is not free to substitute its judgment for that of the agency on substantive matters, [rather] the court must ensure that, in light of the circumstances of a particular case, the agency has given due consideration to pertinent environmental factors" (id.). Where there is disagreement, expert or otherwise, with respect to the methodology or opinions of consultants, preference for one conclusion over another falls within the province of the lead agency, whose relevant determination will not be disturbed so long as its determination was not affected by an error of law or arbitrary and capricious or an abuse of discretion (see Matter of Friends ofP.S. 163, Inc. v Jewish Home Lifecare, 30 NY3d 416,431 [2017]). The pleading alleges that the Planning Board did not take a "hard look" at three specific areas of environmental concern: noise levels, wildlife habitat, and volume of well water. Challenging the Planning Board's consideration of noise that might by emitted from Heartwood in their first cause of action, petitioners do not dispute the record evidence that the Planning Board considered that elevated levels of noise might emanate from weddings and other party events as the primary concern raised by public comment and discussed at Planning Board meetings (see~ Vol.6, pp.1 062 et seq. Vol.13, pp.2323-2330), that it considered the report of Shinrin Yoku's acoustic consultant (see Vol.13, pp.2297-2298), that it consulted with and relied 5 upon its retained environmental engineer (see Vol.l3, pp.2393, 2409), that it identified and intends to impose certain limitations on the hours and volume of amplified music as mitigators of party noise, or that the Planning Board did not set forth a "reasoned elaboration" of its conclusion that the Heartwood facility would not cause a significant noise impact (see Vol.l pp.15-16; see also Millspaugh Affidavit,~~ 21-30). Rather, the petition alleges that the Planning Board "failed" to adequately analyze the noise impacts because it did not consider anything other than music from the event space, that is, they did not adequately consider those noises that could have the most impact on the Heartwood's immediate neighbors, such as people walking in the forest and the frequency ofloud events (see Petition, First Cause of Action). They' criticize the specific locations and times that the Planning Board's consultant chose to perform sound testing, asserting that these choices were based upon "tactical" considerations (see Petition,

~~ 66-76). This aspect of the petition is supported by the expert affidavit of J. Theodore Fink, who asserts that the acoustic consultant's study was inadequate because, in his opinion, a different methodology should have been employed: "what should have been done is to set up a mock demonstration at the location of the proposed outdoor event space ... [so that] noise measurements could have been taken with a real world simulation of a niock wedding band on the site" (Fink Affidavit,~ 38). Petitioners' expert further suggests that the mock event should have been noticed in a local newspaper so that neighbors had the opportunity to experience and comment upon the actual noise conditions of a wedding (see id.). The petition further asserts that the Planning Board failed to consider noise that would be created by human activity in and about the river and adjacent forest (see Petition,~~ 74-76). Petitioners do not demonstrate, however, that the "hard look" required by SEQEA demands such particularized analysis of every potential specific cause of noise (cf. Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d, at 412 ["an agency's substantive obligations under SEQRA must be viewed in light of a rule of reason"]). Petitioners contend, essentially, that the potential for increased noise was not fully examined by the Planning Board and that it failed to consider the impact of that noise upon the health and well-being of the Heartwood's immediate residential neighbors (see Fink

Affidavit,~~ 18-44), despite the assertion of the Planning Board's expert that the evaluation of potential noise impact from the Heartwood project was based upon a "worst case scenario"

(Millspaugh Affidavit, ~ 27). The affidavit of the acoustic expert who performed the evaluations is submitted by respondent Shinrin Y oku in opposition to the petition and to the Millspaugh 6 Affidavit (see Affidavit of Caitlin Ormsbee, sworn to April 8, 2019 [Shinrin Yoku Answer, Exhibit H]). Although petitioners' concerns about the issue of noise may not have been addressed to their satisfaction by the Planning Board, they have not demonstrated that the Planning Board failed to satisfy its obligation under SEQRA to take a hard look at the issue of nmse. The second cause of action asserts that the Planning Board failed to take a hard look at the impact upon wildlife habitat ofthe "dozens of cabins directly within the streamside forest," that it ignored expert reports related to the ecosensitivity of the Shawangunk Kill corridor, that it applied a State regulation rather than its own more stringent local Open Space Plan with respect to buffer space from the Shawangunk Kill, and that less eco-sensitive locations for the cabins were readily available (see Petition, Second Cause of Action). Shinrin Yoku submitted a report on threatened and endangered species habitat (see Vol.3, pp.394-413), which was reviewed and discussed by the Planning Board's retained professional engineer (see Vol.7, pp.1197-1199). The Planning Board considered a vast amount of material related to wildlife habitat and the placement of the cabins along the forested edge of the property, including submissions by petitioners' experts (see Vol.8, pp.1330-1394; Vol.l2, pp.2208-2211; 2213-2243), as well as a chart that set forth before the Planning Board various perceived inadequacies in the assessment of the wildlife habitat by Shinrin Yoku's report (see Vol.12, pp.2202-2207). The Planning Board also considered that the State Department of Environmental Conservation was engaged in revjew of respondent Shinrin Yoku's application for DEC permits pursuant to 6 NYCRR Part 666 (Regulations for the Administration and Management of the Wild, Scenic and Recreational Rivers System) (see Vol.17, pp.3219-3254). Members ofthe Planning Board visited and viewed the property that was to be developed, and the Planning Board's retained professional engineering firm submitted a review of the documents that were before the Board (see Vol. 7, pp.1195-1200). Thus, and again, although petitioners disagree with the Planning Board's conclusion that there would not be significant affect upon the wildlife habitat along the bank of the Shawangunk Kill, it cannot be said that the Planning Board did not take a hard look at that issue. To the extent that petitioners contend that the eco-cabins will be situated too close to the Shawangunk Kill because the Town's Open Space Plan recommends a 1,000 foot buffer, respondents reply- without contradiction - that the Open Space Plan provides recommendations that are not incorporated into the Town's Zoning Code and do not have the force oflaw (see 7 Planning Board Memorandum of Law, at 35). The gravamen of the third cause of action in the petition is that the 24-hour groundwater pump test that was performed on the Heartwood site was inadequate to assess whether the underground water supply would be depleted by the Heartwood's operations and occupants such that petitioners' wells would run dry (see Petition,~~ 201-202). The groundwater test was conducted in accordance with the requirements of the Ulster County Department of Health (see Vol.l4, pp.2575-2577), which issued the permit allowing Heartwood's use of the aquifer. Petitioners have not competently demonstrated that any of the data produced by the 24-hour pump test is either faulty or indicative of their feared overuse ofthe aquifer (see Vols.5-6, pp. 785-968). The testing included potential impact on neighboring wells and it revealed th~t none was visible (see Vol.6, p.1036 [Rapaport at Public Hearing]). With respect to the 72-hour pump test that petitioners contend would have demonstrated whether the water supply was adequate, respondent Planning Board asserts that "[w]hile 72-hour tests are considered the gold standard they are by no means typically used" and that the 24-hour test required by the Ulster

County Health Department was appropriately used in this matter (Hayes Affidavit, ~~ 11, 12). The record demonstrates that the issue of depletion of the aquifer was considered by the

Planning Board (see~ Vol.l1,pp.1929, 2002), and the affidavit of Joseph Hayes, a member of respondent Planning Board and a Professional Geologist with years of experience in the fields of groundwater and aquifer testing, demonstrates that the Planning Board did not fail to take a hard look at the well water issue raised by petitioners (see id., ~~ 6-9). In sum, regarding the first, second and third causes of action in the petition, the petition and its supporting papers essentially seek review of issues that were brought to the attention of the Planning Board, which evaluated and considered these issues and ultimately decided them in a manner with which petitioners disagree. The function of the Court in a judicial proceeding "is to assure that the agency has satisfied SEQRA, procedurally and substantively, not to evaluate data de novo, weigh the desirability of any particular action, choose among alternatives or otherwise substitute its judgment for that of the agency" (Town of Amsterdam v Amsterdam Indus. Dev. Agency, 95 AD3d 1539, 1543 [3d Dept 2012]). The record in this proceeding demonstrates that the Planning Board took the required "hard look" at the potential environmental impacts about which petitioners are concerned, and, although these concerns may be significant to petitioners, the Planning Board found that they are not significant within the 8 meaning ofSEQRA (see 6 NYCRR 617.7 [a] [2]), and that finding will not be disturbed. The final challenge to SEQRA review and the negative declaration is that the Planning Board did not consider the environmental impact of Shinrin Yoku's proposed agricultural activities as set forth in their conservation easement, which was not submitted until after SEQRA review was complete (see Fourth Cause of Action). More specifically, the petition asserts that the SEQRA negative declaration was based in part upon the premise that 54 of the 141 acres of the subject property would remain as open space. In its SEQRA negative declaration, the Planning Board acknowledged that the property was previously used for agricultural purposes (Volt. P.7) and noted that the Heartwood site would include a "vegetable farm" (Vol.l, p.6). With respect to the project's impact on land, the Planning Board stated that "approximately 54 acres [will be placed] into a deed restricted negative easement or a conservation easement to ensure that the land is preserved, including 20 acres along the Shawangunk Kill" (Vol.1, p.8). Regarding the project's impact on Open Space, the negative declaration reiterated that this area would be "protected from development in perpetuity" by the conservation easement (Vol.1, p.14). After the negative declaration had been issued, and as part of its application for lot line revision and a special permit, respondent Shinrin Yoku submitted a conservation easement plan that shows three areas where easements were proposed - a strip along south side of the property bordering the Shawangunk Kill, a small unusually shaped area near the highway frontage, and a large area at the northwest corner ofthe property (see Vol.l4, p.2470). Thereafter, two draft conservation easements were submitted, one of which was a general conservation easement addressed to the protection and preservation of undeveloped and open air areas of the parcel (see Vol. 14, pp.2639-2650, and the other of which was a "Conservation Easement for Agricultural Land" (see id., pp.2652-2667).4 The draft agricultural easement was revised twice (see Vol.17, pp.3177-3208; Vol.l8, pp.3289-3323), and the final draft version would allow the property owner to build within the easement area one barn, one single-family residential dwelling, and a farm market structure (see Vol.l7, pp.3294-3295). The Planning Board's Resolution expressly acknowledges that the agricultural parcel will consist of 33.1 acres, that any proposed structures on the lot will be contained within a 12.75 acre area (see Vol.l, p.38) and that "[t]he agricultural

4. Neither of the proposed easements includes recitation of the specific parts of the property that would be subject to the easements, but the map in the record makes it apparent that the agricultural easement is addressed to the northwest comer of the parcel~ Vol.l4, p.2470). 9 parcel will undergo Site Plan Review when there is a defined plan for its development" (id., p.71). Petitioners, referring to the initial draft agricultural easement and facts that were discussed at a Planning Board meeting October 16, 2018 that preceded the two revisions to the draft agricultural easement (see Svenson ReplyAffirmation,, 6, Exhibit B), argue that Shinrin Y oku' s allegedly late introduction of its plan for an "intensive agribusiness operation" should nullify the negative SEQRA declaration or the site plan, special permit and lot line revisions because the proposed structures on the agricultural lot negate the Planning Board's SEQRA review and other approvals were premised upon 54 acres of open space being maintained within the 141 acre project. Respondents assert that agricultural uses are exempt from both SEQRA review and the Town's Zoning Code requirements, which petitioners do not dispute. Petitioners nevertheless contend that any structures - if constructed - would add to environmental impacts, but these contentions are based upon speculative and exaggerated assertions about the extent of potential development that is contained within the fi~al proposed agricultural easement. Simply put, the Court is unpersuaded that the Planning Board acted in an arbitrary and capricious or unlawful manner by issuing a Resolution that permitted Shinrin Y oku to possibly, in the future, construct limited agricultural structures that would be subject to further Site Plan review. Petitioners' fifth cause of action asserts that the Special Permit issued for the Heartwood project is invalid because the Planning Board failed to make the required findings on whether the proposed Heartwood project "will have no greater overall off-site impact than would full development of the property within uses permitted by right, considering relevant environmental, social, and economic impacts" (Town of Gardiner Town Code§ 220-63[B][12]). The petition specifically asserts that the Planning Board failed to make any "serious investigation" of the impacts of a subdivision of single-family homes that could be developed as-of-right on the parcel and to make a comparison of those impacts to the impacts of the Heartwood project. These arguments are supported by the Fink affidavit, in which it is asserted that such a comparative analysis is "[t]he only way to determine the off-site impacts of full development of the property" (Fink Affidavit, ,48). It is uncontested that the Planning Board's SEQRA review included extensive consideration of the many potential environmental impacts of the proposed project (see Vol.1, pp.8-12), and the record specifically reflects the Planning Board's consideration of those impacts 10 as part of its obligation under Town Code§ 220-63(B)(l2) (see Vol. 14, p.2525, ~~4-7). The Planning Board's finding in support of the special permit was that "by concentratingthe building on the site and with the imposition of three large conservation easements, the operational conditions that are imposed, along with significant landscaping, that the Project will have no more offsite impact than any of the permitted uses on the property. In this regard, various project mitigation measures [required of the Heartwood], such as cabin locations, noise limitations, limited impervious surfaces, and visual effects, among others" would be expected to have less overall off-site impact than a large scale development of a subdivision of single family homes (id., p.46). This finding is in addition to the many enumerated findings required by Town Code § 220-63(B) that address possible off-site impacts of the Heartwood, including matters such as noise, dust, odors, solid waste, nuisance, traffic, water supply and sewage, among others (see Vol.l, 41-45), all of which are supported by facts in the record.5 The conduct and consideration by the Planning Board with respect to the impacts of the Heartwood proposal as compared to development of a residential subdivision is reviewed by the principal planner for the Town of Gardiner, who was actively involved in the review process of Shinrin Yoku's Heartwood application (Affidavit of James Freiband, sworn to April8, 2019, ~~ 11-14). The contention in the petition that the Planning Board failed to make the required findings (see Petition,~ 218) is simply incorrect. The further contention that issuance of the Special Permit was arbitrary and . capricious because the Planning Board's Resolution "did not reflect any rational analysis" is unpersuasive because Town Code§ 220-63(B)(l2) requires the Planning Board to set forth its conclusion, not its analysis, and also because the Planning Board's finding pursuant to Town Code§ 220-63(B)(l2), while not in accord with certain individuals' preference for a subdivision over the Heartwood Project (see Vol. 1, p.178), finds support in the record. The petition further asserts in the sixth cause of action that the Special Permit is invalid because the Planning Board did not "ensure that there is no substantial impact to neighboring property values from the issuance of a special permit" and "failed to undertake any substantial

5. Exhibit K to the Fink Affidavit includes a chart that compares traffic, water and sewage impacts for the Heartwood project and other permitted uses. Petitioners' fifth cause of action fmds little support in this exhibit, as it includes a narrow swath of potential impacts. More importantly, Town Code§ 220-63(B) does not require a comparison at this level of detail, and further, petitioners do not point to where in the record this information was presented to the Planning Board. Nor does the wholly conclusory "expectation" of Dr. Erik Kiviat that "the proposed development [would] have substantially greater impacts on biodiversity than an ordinary residential subdivision as allowed by Town zoning" (Kiviat Affidavit,~. 38) provide the petition with persuasive support. 11 review of the impact of the Project on neighboring property values" (Petition,~~ 221, 222). Town Code§ 220-63 requires the Planning Board to "take into consideration" whether a project requiring a special permit would affect the value of"adjoining property," but it does not demand the affirmative research or level of scrutiny that is suggested by the assertions in the petition. The Planning Board found that the Heartwood project "with conditions imposed by the Planning Board will not interfere with or diminish the value of adjoining property. The site is large (141.3 acres). The project consists of a modest number of cabins that are sited in a way to minimize visibility and maximize distance from surrounding properties" (Vol.1,p.39). The Planning Board's resolution continues with discussion of mitigation efforts such as limitations on noise, setbacks from property lines, and an extensive landscaping plan, which "results in a project that is appropriately screened and buffered from off-site locations" (id., p.40). Clearly, the Planning Board met its obligation under Town Code§ 220-63 to consider whether the project would have a substantial impact on the value of neighboring properties. To the extent that petitioner Adler or others assert in this judicial proceeding that the market value of their property will be

substantially and negatively affected (see Adler Affidavit,~ 10), no non-speculative or otherwise reliable evidence of any potential decrease in the market value of properties adjoining the project site appears in the record or is otherwise presented. Thus, there is no basis upon which to determine that the Planning Board's determination of lack of impact on neighboring properties was arbitrary and capricious. The seventh cause of action asserts that the project's aggregate square footage of80 buildings in the amount of 48,123 square feet violates the Town Code's 6,000 square foot restriction. Respondents assert that petitioners' failure to timely seek the appropriate administrative and/or judicial review of a determination of the Town of Gardiner Building Inspector and Code Enforcement Officer precludes judicial review of this cause of action due to petitioners' failure to exhaust administrative remedies, on grounds ofresjudicata, or untimeliness. The Court does not agree. The administrative determination to which respondents refer, dated March 10, 2017 (see Vol.3, pp.478-479), addressed whether the proposed common area structure was less than 6,000 square feet. The seventh cause of action in the petition asserts that "[t]he Project proposes 80 buildings totaling 48,123 square feet" (Petition,~ 229) of non residential use. Clearly, the issue raised in seventh cause of action, although asserting that the project violates size restrictions, is not the same question answered by the determination of the 12 Building whether the footprint of the common-area structure was less than 6,000 square feet, and thus, the procedural arguments addressed to the size restriction issue are impertinent. Turning to the merits of the seventh cause of action, as noted above, petitioners assert that the project's aggregate square footage of 80 buildings in the amount of 48,123 square feet violates the Town Code's 6,000 square foot restriction, the purpose of which is to "maintain the historic scale and character of development in Gardiner. The intent ofthis provision shall not be evaded through the placement of multiple large buildings on the same site or otherwise in a pattern that is inconsistent with the scale and character ofthe Town" (Town Code§ 220-11[B], note 10). Petitioners offer no argument or record evidence that the Heartwood project, which consists of one large structure (found to comply with the 6,000 square foot restriction), along with 70 cabins, an event bam, and accessory structures (see Vol.1, p.32) consists of"multiple large buildings" that were designed to evade the 6,000 square foot restriction or that the project as a whole- is inconsistent with the scale and character of the Town. Thus, petitioners have not demonstrated that the Site Plan includes structures that violate the applicable size restriction in the Town Code, and the seventh cause of action is lacking merit. The eighth cause of action asserts that the restaurant in the lobby structure is prohibited by the Town Code because restaurants are permitted in RA Districts only if they are in are purposed existing structure or in connection with agricultural use (see Town Code§ 220-10[B] [Use Table; Note 3; §220-10!]). Respondent Shinrin Yoku contends that the issue of permitted use has been administratively appealed to the Zoning Board of Appeals (ZBA) and that petitioners did not seek judicial review of that decision pursuant to Article 78 of the CPLR, and thus the issue should not be considered in the instant proceeding because it is now time barred. In reply, petitioners assert that the "focus" ofthe initial administrative determination (Vol.3, p.344) and the appeal to the ZBA (Vol.4, pp.551-557; 726-729) was whether the project was a "camp" or a "lodging facility" within the meaning of Town Code § 220-74(B) (see Petitioner's Memorandum of Law in Reply, at 20). Shinrin Yoku initially proposed a lodging facility that included a restaurant (see Planning Board Minutes, Jan. 17, 2017 [Vol.l, p.76]). The Building Inspector issued a determination dated February 3, 2017 that the project would be a "lodging facility" (see Vol.3, p.344). The application for a Special Permit and Site Plan review sought approval of a lodging facility with a "food and beverage facility" (see Application, Vol.3, p.350), which was acknowledged by the 13 Planning Board as a "restaurant" (see Planning Board Minutes, Mar. 21, 2017 [Vol.l, p.79]). The Town of Gardiner Town Code defines a "Lodging Facility", in relevant part, as "[a]ny .. . establishment providing sleeping accommodations for transient guests, with or without a .. . restaurant" (Town Code§ 220-74[B] [emphasis supplied]). The administrative appeal to the ZBA referred to the "food/beverage facility" aspect of the application (see Vol.4, p.552), and the minutes of the ZBA meeting include reference to the fact that a restaurant would be included in a lodging facility but not a campground (see Vol.4, p.728). Thus, it is apparent that, although the "focus" of the administrative proceeding was whether the project should be considered a camp or a lodging facility, all who were involved in the administrative process were aware that a special permit for a "lodging facility" included a restaurant. Indeed, there was mention at the Planning Board meeting two days prior to the ZBA meeting that a restaurant would be an accessory use authorized by a lodging facility special permit, and a motion to request clarification of whether a restaurant was included in the Building Inspector's interpretation/ approval of the project as a lodging facility failed (see Planning Board Minutes, June 20, 2017 [Vol.1, p.89]). Thus, the administrative proceeding that determined that the proposed project was properly viewed as a "Lodging Facility" included a determination that the restaurant was allowed by the Lodging Facility Special Permit, and petitioners' failure to seek timely judicial review of the ZBA's determination of June 22, 2017 precludes petitioners' eighth cause of action.6 The ninth cause of action asserts that the Site Plan violates the Town Code because some ofthe cabins are "within 100 feet ofthe top of a streambank," as limited by the setback provision (Town Code§ 220-35[E]). Although not directly asserted in the petition, petitioners argue in reply that subdivision [D] of the Town Code§ 220-35 is also violated because several cabins are located with the 150 foot "stream buffer requirement." Notably, this "buffer" provision is different than a setback because it does not prohibit placement of structures within 150 feet of

6. To the extent that petitioners now characterize the issue as whether a restaurant is forbidden by Town Code § 220-1 O(B) and §220-1 0(1) as opposed to authorized as an accessory use to a specially permitted lodging facility, their attempt to seek serial and piecemeal determinations of the Special Permit cannot be countenanced by the Court. Further, to the extent that they contend that the Planning Board was obligated to seek an interpretation of the Town Code provisions fails because (a) they do not refer to any provision of the Gardiner Town Code that requires the Planning Board to do so (compare Matter of Jamil v Village of Scarsdale Planning Bd., 24 AD3d 552, 554 [2d Dept 2005]; Matter of Woodland Community Assn. v Planning Bd, of Town of Shandaken, 52 AD3d 991,993 [3d Dept 2008]), and (b) such a challenge would be properly presented as whether the Planning Board's June 20, 2017 to not request clarification from the Building Inspector was improper.

14 the stream bank, but requires the Planning Board to consider certain potential environmental effects if a proposal includes development within 150 feet of a stream. The issues of the distance of the cabins - as a 100 foot setback or a 150 foot buffer - was addressed by the Planning Board (see Vol.2, pp.326C-326D), and the Site Plan's compliance with Town Code § 220-35 is addressed by specific findings in the Planning Board's resolution (see Vol.l, pp.58- 60). Petitioners assert that the Planning Board's finding that there is no development within 150 feet of the top of the streambank is incorrect (see Svenson Reply Affirmation, ,-r,-r 3-5, and Exhibit A [abandoning contentions that cabins violate the 100 foot setback requirement]), but even if that assertion is correct, the Planning Board's resolution demonstrates that it considered the "stream buffer" factors, and that many of the considerations set forth in Town Code § 220-35[D] were addressed by extensive conditions imposed upon the project by the NYSDEC permit, which were incorporated by reference into the Planning Board resolution (see Vol.l, pp.27-29). To the extent that the Planning Board's finding that no structures were located within

150 feet of the stream bank is incorrect, such an error is of no moment ~ecause the Planning Board conducted the "stream buffer" review that is required by Town Code§ 220-35[D]. Accordingly, the ninth cause of action alleging violation of Town Code§ 220-35 is without merit. In the tenth cause of action, petitioners again address the level of noise that may be produced by events at the Heartwood, asserting that the Planning Board violated the Town Code because it did not consider whether "sounds emitted at levels lower than [certain decibel restrictions] shall not be permitted if, because of the type or frequency of the noise emitted, such sounds are ... disruptive or in continual disharmony with the character of an adjoining or nearby residential neighborhood" (Town Code§ 220-40[C][3]; see Petition, ,-r,-r 79, 244-247). Although there was no mention by the Planning Board of this specific provision of the Town Code, there was extensive discussion of the sound levels to be emitted, the effects upon neighbors and potential controls thereof (see Vol.2, pp.327E-327H; Millspaugh Affidavit, ,-r,-r 5-7), and conditions placed on the Planning Board's approval of the project include testing to assure that "there is no increase in the observed sound level (0-3 dBa) at the property line" (Vol.l, p73), as well as express retention of the Planning Board's right to revoke its approval of the Special Permit and Site Plan Approval in the event of non-compliance with the noise restrictions (id., pp.69-70). Clearly, the Planning Board did not fail to consider the requirements of Town Code§ 15 220-40(C)(3) as alleged in the tenth cause of action. The eleventh cause of action asserts that the Planning Board violated Town Code § 220-62 because the public hearing was closed prior to Shinrin Yoku's submission of the proposed agricultural easement that "indicated allowable uses of the conservation parcel including construction" of certain structures and that a public hearing was not held on the complete Special Permit, including "the allowed construction under the agricultural easement" see Petition,,, 252, 253). A public hearing was held and closed on September 18, 2018, during which each of the seven concerns of residents (denominated the "Heartwood 7") were addressed (see Vol.l4, p.2617). This included. a request for a conservation easement to provide a check on "additional development/unchecked growth" (see Vol.l4, p.2475). The Town Code requires the Board to "take account of any proposed conservation easements" (Town Code § 220-63), which it did (see Vol.1, p.40). The revised "proposed" agricultural easement does not authorize construction on the agricultural parcel without "all lawful Approvals" (see Vol.28, pp.3294- 3295), and the Special Permit imposes the condition that "[t]he agricultural parcel will undergo Site Plan Review when there is a defined plan for its development" (Vol.1, p. 71 ). Such review will require its own public hearing (see Town Code § 220-62[0]), at which time petitioners will have the opportunity to be heard on development to be allowed on the agricultural easement parcel. 7 Thus, the Planning Board's acceptance of the final proposed agricultural easement after the public hearing does not render the Special Permit incomplete, and petitioners and other members of the public will have the opportunity to be heard if and when an application is made for Site Plan review, as required by the Special Permit. The twelfth cause of action asserts that the Planning Board's approval ofthe Lot Line revision is void because no public hearing was held. Town Law§ 267(6)(d)(i) requires a public hearing on an application for a plat (also known as a subdivision), but the Town of Gardiner Town Code expressly states that "[a] lot line revision is not a subdivision" (Town Code§ 188-9), and thus, Town Law§ 267(6)(d)(i) is inapplicable. Moreover, the Planning Board's notices of the public hearing on the Special Permit and Site Plan approval specifically stated that the

7. In light of petitioners' contention that "(t]he agribusiness was introduced in October 2018 after all hearings were closed"~ Petitioners' Memorandum of Law in Reply, p.29), it bears mentioning that construction of"Agricultural Structures and Single Family Home" as incorporated in the final proposed agricultural easement were included in the very earliest proposal for the Heartwood project~ Vol. I, p.l ), and future development of the agricultural parcel was never removed from Shinrin Yok:u's proposal. 16 Planning Board would be considering a lot line revision (see Vol.l4, pp.2528-2533). Accordingly, the twelfth cause of action is without merit. The thirteenth cause of action asserts that the SEQRA negative declaration is null and void because the Planning Board was not legally constituted at the time it took action on the negative declaration (see Petition,~~ 179-183; 266-268). As explained and demonstrated by respondent Shinrin Y oku, this cause of action is without merit because the Planning Board was created by resolution of the Town Board on April10. 1956 (see Moriello Affidavit, Exhibit F). Otherwise, the Court has considered any remaining arguments and finds them either unavailing and/or unnecessary to reach Based on the foregoing it is,

ORDERED and ADJUDGED that the petition/complaint is denied.

This shall constitute the Decision, Order and Judgment of the Court. The original Decision, Order and Judgment is being returned to the counsel for respondent/defendant Shinrin Yoke, LLC, who is directed to enter this Decision, Order and Judgment without notice and to serve respondents with a copy of this Decision, Order and Judgment with notice of entry. The Court will transmit a copy of the Decision, Order and Judgment and the papers considered to the Ulster County Clerk. The signing of the Decision, Order and Judgment and delivery of a copy of the Decision, Order and Judgment shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.

ENTER Dated: Kingston, New York January 29, 2020

/ j James P. v SupremeC Papers Considered: (1) Notice ofPetition, dated February 19, 2019; (2) Summons, dated February 19, 2019; (3) Verified Petition and Complaint, dated and verified dated February 19, 2019, with Exhibits A-B; (4) Affirmation of Emily Svenson, Esq. In Support ofVerified Petition and Complaint, dated February 18, 2019, with Exhibits A-KK; (5) Affidavit of Hilary Adler, sworn to February 17, 2019, with Exhibits A-D; (6) Affidavit of Erik Kiviat, sworn to February 18, 2019, with Exhibits A-B; (7) Affidavit of J. Theodore Finl, sworn to February 18,2019, with Exhibits A-M; (8) Verified Answer of Planning Board of the Town of Gardiner, dated and verified April10, 2019; (9) Affidavit ofMark P. Millspaugh, P.E., sworn to April&, 2019, with Exhibits A-C; (10) Affidavit of James Freiband, sworn to April 8, 2019, with Exhibits A-H; (11) Affidavit of Paul Colucci, sworn to April 9, 2019; (12) Affidavit of Joseph Hayes, sworn to April10, 2019, with Exhibit A; (13) [Respondent Planning Board] Memorandum of Law in Opposition to Petition, dated April10, 2019; (14) Record of Proceedings, Volumes 1-19 (including Volumes 14, 14A and 14B); (15) Verified Answer: Shinrin Yoku LLC, dated April9, 2019 and verified April&, 2019; (16) Affidavit of Michael A. Moriello, Esq., sworn to April9, 2019, with Exhibits A-I, including: Exhibit G: Affidavit of Barry Medenbach, sworn to April4, 2019, with Exhibits; Exhibit H: Affidavit of Caitlin Ormsbee, sworn to April 8, 20 19; and Exhibit I: Affidavit of Michael Nowicki, sworn to April2, 2019, with Exhibits; (17) Respondent Shinrin Yoku LLC Memorandum ofLaw, dated April9, 2019; (18) Petitioner-Plaintiffs' Memorandum of Law in Reply, dated April24, 2019, with Exhibit A; (19) Affirmation of Emily Svenson, Esq., in Support of Petitioners' Reply, dated April24, 2019, with Exhibits A-B; (20) Certified Transcript of Oral Argument of July 9, 2019, received August 2, 2019; (21) Corrected Volume 14 of Record of Proceedings, received October 9, 2019.