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SUPREME COURT
STATE OF NEW YORK COUNTY OF COLUMBIA
_________________________________________________
In the Matter of the Application of
SUMMIT LAKE CONSERVATION GROUP, LLC,
PETER FENIELLO, ESTER LUCIA ARIAS, JULIA
SEDLOCK, SALLY BAKER, JOSEPH R. MIRANDA,
GEORGE R. BREHM, JR., EILEEN ORDU, KAREN
SCHOEMER, CAROLYN STERN, KATE MARTINO,
JOHN GOURLAY, and MARK FIELDING,
AFFIDAVIT
Petitioners,
Index No.: E012022018817
For a Judgment Pursuant to Article 78 of the New York
Civil Practice Law and Rules
-against-
VILAGE OF PHILMONT, VILLAGE OF PHILMONT
PLANNING BOARD, VILLAGE OF PHILMONT BOARD
OF TRUSTEES and CLOVER REACH PARTNERS LLC,
Respondents.
_________________________________________________
STATE OF NEW YORK )
) SS.:
COUNTY OF COLUMBIA )
BRANDEE K. NELSON, being duly sworn, deposes and says:
1. I am a licensed professional engineer with more than twenty years of civil
engineering experience. I am licensed by the State of New York and have been licensed since
January 3, 2002. My license number is 079493, and my license is current and in good standing
and expires at the end of October, 2025.
2. Since becoming licensed, I have worked on civil and environmental engineering
projects for over 20 years and my work has ranged from helping small communities plan, fund,
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permit, and construct infrastructure improvements such as parks, municipal buildings, and
infrastructure to assisting private clients by designing, permitting and constructing residential
housing developments, summer camps, commercial developments, and resorts. My design
practice is varied to include designing new recreational facilities, commercial developments, as
well as municipal infrastructure such as roadways, drainage systems, and sidewalks.
3. I have an Environmental Engineering degree from Montana Tech of the
University of Monday. I am a Vice President with Tighe & Bond, a regionally recognized
environmental consulting, engineering, design, and planning firm, and I practice out of our
Rhinebeck, New York office.
4. Through my direct involvement in this matter and review of the files and records
maintained and generated by our firm in this matter, I am fully familiar with the facts and
circumstances of the instant action.
5. This affidavit is submitted in support of the objections in law and in general
opposition to the petition seeking to vacate the determinations of the respondent Village of
Philmont Planning Board (herein the “Planning Board”), and in support of the opposition
interposed by Respondent, Clover Reach Partners, LLC (herein “Clover Reach” or “the
Applicant”).
The Clover Reach Property
6. On or about May 25, 2021, Clover Reach acquired a 20.276 acre parcel of real
property in the Village of Philmont. The property contained 57 previously approved, yet
undeveloped lots. (See, Dkt. No. 271). Notwithstanding the prior approval, Clover Reach opted
to significantly reduce the number of lots to be developed, and further embarked on a concerted
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effort to minimize the environmental, visual and cultural impacts of the development on the
project site and on the community at large.
“The Woods” Subdivision
7. On behalf of Clover Reach, Tighe & Bond made application to the Village
Planning Board by compiled submission dated November 1, 2021 (Dkt. No. 27), consisting of:
i. The application fee.
ii. Village of Philmont Application for Major Subdivision Approval
(Appendix A).
iii. Draft Survey of Property of Clover Reach Partners, prepared by
Crawford & Associates Engineering & Land Surveying, PC (Appendix
B).
iv. Sketch Plat, prepared by Tighe & Bond (Appendix C).
v. State Environmental Quality Review Act (SEQRA) Full Environmental
Assessment Form.
vi. (FEAF) Parts 1 through 3 with Supplements (Appendix D).
vii. Property Tax Map (Appendix E).
viii. A letter that detailed:
1. Site Background.
2. Existing Conditions.
3. Proposed Conditions.
4. Site Utilities, Water, Sewer, Stormwater.
5. The Subdivision patterns.
6. Traffic, Access and Parking.
7. Environmental Impacts: Natural and Cultural Resources with the
associated Full Environmental Assessment Form for SEQRA.
8. On behalf of Clover Reach, Tighe & Bond made an additional submission to the
Village Planning Board by compiled submission dated January 4, 2022 (Dkt No. 28). That
submission updated the application with a full survey, a preliminary plat, updated the SEQRA
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Full Environmental Assessment Form with supplements for other agencies, including a
December 29, 2021, letter from US Fish & Wildlife – identifying potentially impacted species of
animals with potential for 2 species of bat and monarch butterflies. Further, a letter from NY
Parks, Recreation and Historic Preservation dated November 20, 2022, seeking additional
information, and an email from NY Parks with the determination the project is not in an
archaeologically/environmentally sensitive area.
9. On January 18, 2022, I presented the Clover Reach project to the Planning Board.
At that time, I reviewed and presented all the submissions made to date and advised the Board
that we were waiting for confirmation from other governmental agencies on research requests.
In addition, the Planning Board was advised that the Applicant planned to impose Covenants and
Restrictions on all lots in the development that would prevent and limit the clearing of trees
within each lot in the project. I also explained to the Planning Board that the proposed one-way
loop road was intended to preserve mature trees covering a vast portion of the project site, and
prevent the need to undertake cut-and-fill grading as the project is located on a hillside.
10. During that meeting, the Planning Board requested a drop box link be set up so all
submissions would be made public on the Village website: www.philmont.org/the-woods/ ; and
the minutes of the Planning Board meetings were also made available on the website:
www.philmont.org/planning-board/. The Planning Board requested that the Applicant distribute
the lead agency circulation for SEQRA purposes to all interested and involved agencies.
11. On behalf of Clover Reach, Tighe & Bond made an additional submission dated
February 1, 2022 (Dkt. No. 29), consisting of a revised Preliminary Plat, a Stormwater Pollution
Prevention Plan and the State Historic Preservation Office (SHPO) determination that the project
would have no adverse impact on the proposed Historic District. Wetlands located on the parcel
had been delineated, finding four small wetland areas, and it was noted what wetland permitting
would be required. Wetlands were proposed to be adequately addressed for the project’s
development. As visual impacts were anticipated to be of public concern, the applicant was
advised to prepare a visual analysis of the project for Planning Board and public review.
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12. The Planning Board convened on February 15, 2022, and the Clover Reach
project was again presented by your deponent. A neighborhood assessment of the project had
been submitted (Dkt. No. 30) showing the project and the plantings and tree management. A
letter from the fire chief, Mark Beaumont, dated February 14, 2022, was received that indicated:
“In regard to the plans for project #C5147-01 The Woods Subdivision in the
Village of Philmont which were provided to the fire company last month were
fully reviewed and meet our approval. The Woods Road one way loop
illustrated on plan page C-101.1 shows good accessibility for fire apparatus
and presents no known issues for emergency vehicle operations.” (Dkt. No.
40).
13. In addition to addressing the stormwater run-off created by the site development,
the stormwater design prepared by Tighe & Bond resulted in an improvement in the existing
stormwater run-off conditions by collecting off-site stormwater run-off from uphill of this project
and managing it to reduce flooding of homes along Summit Avenue, and also manage and treat
stormwater runoff from the proposed development area. At the Planning Board meeting, the
Village’s engineer provided his comment letter dated February 15, 2022, containing his technical
review results to be address. (Dkt. No. 43).
14. On March 1, 2022, Tighe & Bond made an additional submission on behalf of
Clover Reach which addressed each of the Village’s engineering technical comments. (Dkt. No.
31).
15. On March 10, 2022, Tighe & Bond made an additional submission setting forth a
potential land exchange with the Village of Philmont regarding developer land to be exchanged
with conservation lands owned by the Village. Eventually, however, the Applicant abandoned
that request, and that proposal is not at issue in the present matter. (Dkt. No. 32).
16. The Planning Board reconvened on March 16, 2022 and continued the ongoing
review of the project. At that meeting, Tighe & Bond presented a visual assessment of the
potential visual impacts of the project from the vantage point of the North side of Summit Lake
to the Board and the numerous members of the public present. The assessment consisted of
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utilization of a 3-dimensional terrain model, applying the photos over the model to show the
project (1) without development; (2) with development; and (3) the pre-existing homes on the
hillside of the prior development in the area, (Dkt. No. 33). As is evident on page 3 of Dkt. No.
33, there are numerous existing homes immediately adjacent to the project site that are currently
visible from the requested assessment vantage point, and which homes will remain significantly
more visible than those proposed in this project due to the measures being taken to retain trees,
limit cut-and-fill grading and impose covenants mandating use of natural colors for roof and
homes.
17. Also, during the March 16, 2022 presentation, an engineered line of sight
rendering was submitted showing existing trees, and visual impacts of development. (Dkt. No.
34). The additional submissions with the visual renderings were likewise submitted to SHPO for
review. A majority of the Planning Board members deemed the visual submissions adequate for
review and full consideration of the project.
18. Furthermore, the Covenants and Restrictions discussed with the Planning Board
on January 18, 2022, were provided in draft form. (Dkt. No. 37). While the Applicant was under
no Zoning Code obligation to impose covenants and restrictions related to tree clearing, at
paragraph 9, the Applicant provided the following self-imposed restrictions:
9. On each lot, tree clearing shall be limited to a maximum of 50% of the pre-
development magnitude of trees sized at 12” diameter or more. A table of pre-
development tree quantities at 12”+ diameter will be prepared for each lot, and
clearing will be limited to 50% or fewer.
Notwithstanding the foregoing, exceptions will be made for trees determined to be
hazard trees, which trees may be removed for safety purposes if a tree is suffering
insect damage, rot, and/or storm damage. Satisfactory documentation from an arborist
or forester must be provided showing the hazard condition or deterioration of the tree
that requires removal.
Penalties for excess clearing will include a requirement that any trees improperly
removed will be replaced, and until such action is undertaken, monthly recurring fines,
as set by the Village, shall be imposed on anyone violating this Covenant.
Remediation is defined as the replacement of any improperly cleared trees with trees
of equal quantity and at least 4” in diameter, with the continuing obligation to maintain
those trees or the required number of trees in perpetuity.
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19. The intent of the Covenants and Restrictions is to keep the project wooded and
allow the existing vegetation to provide screening. This was also accomplished by imposing the
mandatory use of natural materials or dark hues of a historic color collection for all structures
built to mitigate visibility from the reservoir, through the woods. During the entirety of the
Planning Board process, the Petitioners never provided evidence that being able to see single
family homes, at least the ones that could be visible, would be a significant negative
environmental impact for a parcel of land zoned for residential use.
20. At the March 16, 2022 Planning Board meeting, the SEQRA lead agency
circulation was reviewed and deemed completed and the time for any responses had expired, so
the Planning Board declared itself lead agency for SEQRA purposes.
21. The Planning Board advised the Applicant that based upon potential public
concerns about the project, and the potential for concerns about environmental impacts, they
wanted to conduct a public hearing that would allow the residents and community an earlier
opportunity to receive and review the plans and submissions, and so a public hearing was set for
May 17, 2022.
22. At the May 17, 2022, your deponent gave a comprehensive project overview, and
the Planning Board opened the public hearing. Over 20 people spoke at the hearing regarding
many aspects of the project, including those pertaining to the visual impacts of the housing. At
the end of the meeting, the Planning Board indicated their desire to review and process the public
comments and upon consent, the public hearing was continued and adjourned, so that additional
public comment could be taken at a later date. (See Dkt. No. 39 containing the minutes of the
public hearing).
23. On June 17, 2022, Tighe & Bond made an additional submission on behalf of
Clover Reach, including minor adjustments to the subdivision plat to accommodate parcels that
were to be owned by the Village from the previous subdivision approval. (Dkt. No. 35). The
public hearing was continued, and Tighe & Bond continued its presentation in an effort to
address prior issues or questions raised during the firstmeeting of the public hearing. Tighe &
Bond explained that we had consulted with the Village Department of Public Works about the
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road, water and sewer and any concerns or issues were satisfactorily addressed. Tighe & Bond
also addressed a number of public comments from the public hearing, including the manner in
which stormwater was being managed to comply with required standards and applicable
stormwater regulations. It was explained that Tighe & Bond established an engineering plan to
improve the water quality by capturing stormwater runoff not just from the proposed
development, but from the prior existing subdivision thereby resulting in a net reduction of peak
runoff going to the lake from the hillside. As to animal species, specifically bats, project site tree
clearing would only be undertaken at specific times of year in compliance with NYS DEC timing
requirements.
24. At the June 17, 2022 meeting, the visual analysis undertaken by Tighe & Bond
was again reviewed and showed the possible impacts, including the impact of the Village’s
existing approximately 10 acre conservation area buffer between the project site and the south
shore of Summit Lake, as well as the impact of minimal tree clearing on the visibility of the
homes to be constructed in the subdivision. (See Dkt. No. 33). In reality, a majority of the
Petitioners in this Article 78 proceeding own homes directly on Summit Lake, and have cleared
the bulk of their lots, thereby exposing all others situate around the lake to a clear and open view
of their homes. (See Dkt No. 5 showing the location of many of Petitioners’ properties).
Furthermore, as the third page of Docket No. 33 shows, there are existing homes readily visible
that adjoin the subject property.
25. During the continued public hearing, it was also noted that the Village has more
than adequate water and sewer capacity for the project. Many members of the public who
attended again commented on the project, including several abutters to the project who offered
their comments. The Planning Board determined by a majority, that they were satisfied the
Applicant addressed all comments and no further information or analysis needed to be provided.
A motion to close the public hearing was made by the Planning Board.
26. On August 3, 2022, the Planning Board again convened to discuss the one-way
loop road. As a result of concerns previously raised by Planning Board member Thomas Paino,
Tighe & Bond had contacted the NYS Department of State, Division of Codes to review the
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regulations governing the minimum width of the proposed road in the subdivision. Specifically, I
inquired as to whether the proposed one-way road needed to be not less than 20’ in width, as the
NYS Code requires for two-way traffic, yet the Code does not mention or differentiate between a
one-way road versus a two-way road.
27. As a result of that inquiry, the NYS Department of State, Division of Codes,
Bryant Arms, Code Compliance Specialist, that stated:
Our response:
Fire apparatus will probably need to park within the FAAR [Fire Apparatus
Access Road] during an emergency along with vehicles that belong to other
emergency responders. The minimum widths specified by Sections 503.2.1 and
D103.1 are intended to anticipate that. Remember that normal vehicle parking is
not allowed within a FAAR at any time according to Section 503.4 of the FCNYS
because there probably isn’t enough time to remove them during an emergency.
However, Section 503.2.2 of the FCNYS enables the local authority having
jurisdiction (AHJ) to modify the FNYS’s minimum widths for FAARs. So,
you need to have the AHJ answer your question for a definitive answer.
(Dkt. No. 41).
28. Based upon the provided email exchange, the NYS Division of Codes stated the
determination of adequacy of the width of the FAAR (Fire Apparatus Access Road) was up to
the Local Authority Having Jurisdiction (AHJ), meaning the Fire Chief, who had previously, in
writing, on February 14, 2022, stated the road was adequate and provided “good accessibility”.
(Dkt No. 40). The proposed one-way road will be signed with “No Parking” signs, with no
parking allowed on the roadway at any time.
29. Additionally, as part of the Tighe & Bond submission of June 14, 2022, drawing
C-101-.1 was provided which is an engineered CAD drawing demonstrating that the Village’s
largest fire apparatus could navigate the road unencumbered. (See Dkt. No 35, at page 5).
30. The Planning Board also discussed the covenants and restrictions, together with
their impacts and enforceability. The revised covenants contained a pre-construction table
showing trees present on each lot and the necessity that prior to development, each building lot
would need a pre-development tree survey. The covenants also provided for fines and penalties,
including the requirement for tree replacement if the restriction is violated. The covenants also
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expressly prohibited parking on the roadway, and provided that the Village was a party and could
undertake enforcement upon a violation. (Dkt. No. 38).
31. The Planning Board’s engineer then reviewed the SEQRA documentation,
specifically the Part 2 of the SEQRA Long Form EAF, the board and engineer reviewed each
and every question and where warranted, the board, the Applicant and Village engineer
discussed the potential impacts with the board. Additionally, members of the public who were
present were given the opportunity to comment on the discussions, and their comments were
addressed by the engineers. The Planning Board found no significant negative environmental
impacts, and issued a negative declaration by unanimous vote of the Planning Board.
32. The Planning Board then made a motion to approve the subdivision based upon
all of the foregoing submissions, comments, responses and representations. Four of the five
members voted to approve the subdivision, one member voted against approval, the motion
carried, and the meeting adjourned. (See Minutes in Dkt. No. 39).
33. The approval was memorialized by a Resolution dated September 1, 2022, signed
by the Planning Board Chairman, and filed in the office of the Village Clerk. (Dkt. No. 45).
I. Petition’s Arguments
A. Compliance with the Zoning Law
Maximum Grade of Driveway
34. The Petitioners argue that the project does not comply with the Village zoning
law §160-13(L), Driveways, in that the proposed driveways for the development exceed ten
(10%) percent grades, and only one such driveway is in compliance. Such statement is simply
incorrect.
35. First, the zoning law expressly states that where, “because of practical difficulty
or unreasonable hardship affecting a particular property, the construction of a driveway grade”
can be as steep as 15%. (See, Dkt. No. 1 @ page 15). Here, only two driveways identified in the
plans exceed a proposed 15% grade, and thus, the remaining 14 are in compliance with the code.
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36. Second, the grades proposed by Applicant are simply that, ‘proposed’ grades. In
the event the building department or the highway department require the construction of any
particular driveway at a particular grade, the Applicant will comply with such requirement at the
time the building permit is issued.
37. In an effort to address the Petitioners’ concerns regarding visual impacts with tree
clearing and stormwater management, the Applicant advised the Planning Board that due to the
project location on a hillside, the existing site grades would remain to the greatest extent
practical. In other words, to regrade the hillside would require significant tree clearing and have
a negative visual impact, as well as a negative impact on stormwater management at the site,
which was already collecting stormwater from the previously built out development that was
uphill from this project. Therefore, the proposed driveway grades are steeper to avoid the
additional site grading. The Planning board considered and accepted that response, and as per
the zoning law, we “demonstrated to the satisfaction of the Planning Board” the grades were
justified.
Minimum Width of Road
38. Petitioner’s next allege that the Respondent violated Village zoning law §127-11,
Right of Way Width, in that the proposed right of way is less than 50’.
39. However, as set forth above, the Village code contemplates a two-way road, and
not the unique one-way road proposed for this development. Here, the right of way width is
commensurate with the width needed by the Village to properly maintain the road and its
shoulders, drainage ditches and other appurtenances.
40. This one-way road plan was reviewed by the highway superintendent, the Fire
Chief and the Village engineer, and all concurred that the proposed right of way width was
adequate for the roads’ intended purpose as a one-way street. Further, the NYS Division of
Codes representative advised that they deferred to the local fire chief to make the determination
of adequacy under this situation.
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B. Compliance with the Village Law
Completed Application
41. In their Second Cause of Action, Petitioners argue that there were violations of
the procedural requirements of the New York State Village law during the approval process
because the application could not be deemed complete until a SEQRA negative declaration was
issued.
42. Here, a number of practical characteristics of this application and its process
inform otherwise.
43. First, numerous members of the public were present throughout the entire
application process, and often were given the opportunity to speak about their issues and
concerns with the application regardless of whether a formal public hearing was opened or
remained open.
44. Second, as early as February, 2022, the meeting minutes reflect that “SEQRA is
done”. (See, Dkt. No. 39). Again, in April, 2022 at the outset of the public hearing, the meeting
minutes reflect the fact that “SEQRA has been completed and submitted”. Thus, effectively, the
Planning Board had made the determination to issue a SEQRA negative declaration without
formally or officially voting on same well prior to the completion of the public hearing.
45. Third, in March, 2022, the Planning Board apparently deemed the application
complete so as to schedule the public hearing, and afford those regularly present at the meetings
a formal opportunity to weigh in on the potential environmental and project issues. In fact, the
public and members of the Petitioner’s group expressly requested that they be allowed to speak
to these issues earlier, and the Planning Board accommodated this request.
46. Had the Planning Board simply issued their negative declaration earlier,
Petitioners’ would have been deprived of the opportunity to speak as to the environmental and
SEQRA concerns they had.
47. Fourth, any changes made to plans and specifications after the determination to
conduct the public hearing were minor and were undertaken to address public comments and
concerns, or to reflect actual ownership in the Village of certain property adjoining the project.
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48. In fact, while the public hearing was “officially” closed on June 21, 2022,
members of the public who were present at each of the subsequent meetings after the public
hearing was closed were given the opportunity to speak and raise comments. In effect, the public
hearing did remain open following the Board’s issuance of a negative declaration under SEQRA.
49. Notwithstanding, the Village Law provides that a public hearing must be held
within 62 days of the submission of a complete preliminary plat [Village Law § 7–
728(6)(d)(i)(1)(a)], and the failure to issue a timely decision results in a default approval
(see Village Law § 7–728[8]).
50. Thus, even without the public hearing following the completed application,
Clover Reach was approved under the terms of the Village Law by default.
51. Importantly, the Petitioners point out no other damages, deprivations or negative
consequences to allowing the public to speak early and often, because there were none. It is
submitted that the public got complete and ample time to make comments on the project, and the
Planning Board accepted and considered the comments, even when repetitive.
C. The New York State Fire Code Access Road
52. The Petitioners next argue that the project does not comply with the New York
State Fire Code because the road width is not 20 feet and no variance was obtained, and instead
the road is only proposed at 12 feet with two-foot shoulders on each side for a total of 16 feet in
width.
53. As set forth above, however, on this precise issue of the width necessary for a
one-way road versus a two-way road, we contacted the New York State Department of State,
Division of Codes, Bryant Arms, Code Compliance Specialist and were informed that the
determination on road width was up to the local jurisdiction having authority, the local fire chief.
54. The Fire Chief had by letter dated February 14, 2022, approved the road finding it
had good accessibility. (See, Dkt. No. 40).
55. Also, Tighe & bond undertook an AUTO-turn swept path computer-aided
analysis of the proposed road, and found the Village’s largest fire apparatus had sufficient
accessibility on the one-way road as designed.
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56. Because the NYS Division of Codes determined that the local fire company
makes the determination, no variance was needed. (See, Dkt. No. 41).
D. The Negative Declaration Does Not Violate SEQRA
BOA Implications
57. In this proceeding, the Petitioners argue that because the Village is a participant in
the New York State Department of State Brownfield Opportunity Area (BOA) process that this
subdivision should not have been approved. The Brownfield Opportunity Area (BOA) Program
provides state planning funds to community-based organizations and municipalities to develop
community plans for areas with multiple vacant properties or brownfields.
58. When the issue of the existence of the BOA was raised by members of the public,
and a request for a moratorium on subdivisions was made to the Village of Philmont Village
Board, your deponent prepared correspondence to the Village Board dated January 10, 2022
responding to such request (Dkt. No. 44), stating as follows:
With respect to the Village’s Brownfield Opportunity Area (BOA) process, we
recognize the substantial effort made by the Village and the community to foster
improvements within the Village. The Woods supports the revitalization of the
Village by providing new housing in an area previously identified for residential
development. Based on the New York State Department of State program fact
sheet regarding the BOA program, a BOA within a community is focused on
revitalizing and redeveloping neighborhoods affected by real or perceived
environmental contamination due to past industrial use. Here is the NYSDOS fact
sheet: https://dos.ny.gov/system/files/documents/2020/03/dos-boa-fact-
sheet_2020.pdf
Although the subject site is within the BOA study area, it is not one of the
priority redevelopment sites slated for specific analysis under the BOA
program nor is it within a designated subarea.
The Woods amended subdivision is consistent with the elements of the BOA
program, including creating linkages for the Village trail system and protecting
Summit Lake. In addition, the Village’s website says: “The core of Philmont’s
BOA, Summit Lake encapsulates the Village’s rich industrial history of
innovative water-power engineering. Mills and artifacts of the watercourse
contribute historical assets for area revitalization, and strategic sites in close
proximity to Summit Lake will create opportunities for redevelopment and
community development – including housing, (emphasis added) retail,
commercial, and public amenities like lake-side parks—that will connect and
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integrate the lake waterfront to key sites, downtown, and High Falls Conservation
Area.” (See, Dkt. No. 44)
59. The BOA does not prohibit privately owned lands from being developed residentially in
compliance with existing zoning laws for the Village. Furthermore, the actual area where this
residential development is proposed is not designated as within the five BOA subareas identified
as necessary for the implementation of the BOA plan.
60. Ultimately, after considering
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FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 SUPREME COURT STATE OF NEW YORK COUNTY OF COLUMBIA _________________________________________________ In the Matter of the Application of SUMMIT LAKE CONSERVATION GROUP, LLC, PETER FENIELLO, ESTER LUCIA ARIAS, JULIA SEDLOCK, SALLY BAKER, JOSEPH R. MIRANDA, GEORGE R. BREHM, JR., EILEEN ORDU, KAREN SCHOEMER, CAROLYN STERN, KATE MARTINO, JOHN GOURLAY, and MARK FIELDING, AFFIDAVIT Petitioners, Index No.: E012022018817 For a Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules -against- VILAGE OF PHILMONT, VILLAGE OF PHILMONT PLANNING BOARD, VILLAGE OF PHILMONT BOARD OF TRUSTEES and CLOVER REACH PARTNERS LLC, Respondents. _________________________________________________ STATE OF NEW YORK ) ) SS.: COUNTY OF COLUMBIA ) BRANDEE K. NELSON, being duly sworn, deposes and says: 1. I am a licensed professional engineer with more than twenty years of civil engineering experience. I am licensed by the State of New York and have been licensed since January 3, 2002. My license number is 079493, and my license is current and in good standing and expires at the end of October, 2025. 2. Since becoming licensed, I have worked on civil and environmental engineering projects for over 20 years and my work has ranged from helping small communities plan, fund, 1 of 17 FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 permit, and construct infrastructure improvements such as parks, municipal buildings, and infrastructure to assisting private clients by designing, permitting and constructing residential housing developments, summer camps, commercial developments, and resorts. My design practice is varied to include designing new recreational facilities, commercial developments, as well as municipal infrastructure such as roadways, drainage systems, and sidewalks. 3. I have an Environmental Engineering degree from Montana Tech of the University of Monday. I am a Vice President with Tighe & Bond, a regionally recognized environmental consulting, engineering, design, and planning firm, and I practice out of our Rhinebeck, New York office. 4. Through my direct involvement in this matter and review of the files and records maintained and generated by our firm in this matter, I am fully familiar with the facts and circumstances of the instant action. 5. This affidavit is submitted in support of the objections in law and in general opposition to the petition seeking to vacate the determinations of the respondent Village of Philmont Planning Board (herein the “Planning Board”), and in support of the opposition interposed by Respondent, Clover Reach Partners, LLC (herein “Clover Reach” or “the Applicant”). The Clover Reach Property 6. On or about May 25, 2021, Clover Reach acquired a 20.276 acre parcel of real property in the Village of Philmont. The property contained 57 previously approved, yet undeveloped lots. (See, Dkt. No. 271). Notwithstanding the prior approval, Clover Reach opted to significantly reduce the number of lots to be developed, and further embarked on a concerted 1 Dkt. No. references are to the NYSCEF Document List for this action under Index No. E012022018817. 2 of 17 FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 effort to minimize the environmental, visual and cultural impacts of the development on the project site and on the community at large. “The Woods” Subdivision 7. On behalf of Clover Reach, Tighe & Bond made application to the Village Planning Board by compiled submission dated November 1, 2021 (Dkt. No. 27), consisting of: i. The application fee. ii. Village of Philmont Application for Major Subdivision Approval (Appendix A). iii. Draft Survey of Property of Clover Reach Partners, prepared by Crawford & Associates Engineering & Land Surveying, PC (Appendix B). iv. Sketch Plat, prepared by Tighe & Bond (Appendix C). v. State Environmental Quality Review Act (SEQRA) Full Environmental Assessment Form. vi. (FEAF) Parts 1 through 3 with Supplements (Appendix D). vii. Property Tax Map (Appendix E). viii. A letter that detailed: 1. Site Background. 2. Existing Conditions. 3. Proposed Conditions. 4. Site Utilities, Water, Sewer, Stormwater. 5. The Subdivision patterns. 6. Traffic, Access and Parking. 7. Environmental Impacts: Natural and Cultural Resources with the associated Full Environmental Assessment Form for SEQRA. 8. On behalf of Clover Reach, Tighe & Bond made an additional submission to the Village Planning Board by compiled submission dated January 4, 2022 (Dkt No. 28). That submission updated the application with a full survey, a preliminary plat, updated the SEQRA 3 of 17 FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 Full Environmental Assessment Form with supplements for other agencies, including a December 29, 2021, letter from US Fish & Wildlife – identifying potentially impacted species of animals with potential for 2 species of bat and monarch butterflies. Further, a letter from NY Parks, Recreation and Historic Preservation dated November 20, 2022, seeking additional information, and an email from NY Parks with the determination the project is not in an archaeologically/environmentally sensitive area. 9. On January 18, 2022, I presented the Clover Reach project to the Planning Board. At that time, I reviewed and presented all the submissions made to date and advised the Board that we were waiting for confirmation from other governmental agencies on research requests. In addition, the Planning Board was advised that the Applicant planned to impose Covenants and Restrictions on all lots in the development that would prevent and limit the clearing of trees within each lot in the project. I also explained to the Planning Board that the proposed one-way loop road was intended to preserve mature trees covering a vast portion of the project site, and prevent the need to undertake cut-and-fill grading as the project is located on a hillside. 10. During that meeting, the Planning Board requested a drop box link be set up so all submissions would be made public on the Village website: www.philmont.org/the-woods/ ; and the minutes of the Planning Board meetings were also made available on the website: www.philmont.org/planning-board/. The Planning Board requested that the Applicant distribute the lead agency circulation for SEQRA purposes to all interested and involved agencies. 11. On behalf of Clover Reach, Tighe & Bond made an additional submission dated February 1, 2022 (Dkt. No. 29), consisting of a revised Preliminary Plat, a Stormwater Pollution Prevention Plan and the State Historic Preservation Office (SHPO) determination that the project would have no adverse impact on the proposed Historic District. Wetlands located on the parcel had been delineated, finding four small wetland areas, and it was noted what wetland permitting would be required. Wetlands were proposed to be adequately addressed for the project’s development. As visual impacts were anticipated to be of public concern, the applicant was advised to prepare a visual analysis of the project for Planning Board and public review. 4 of 17 FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 12. The Planning Board convened on February 15, 2022, and the Clover Reach project was again presented by your deponent. A neighborhood assessment of the project had been submitted (Dkt. No. 30) showing the project and the plantings and tree management. A letter from the fire chief, Mark Beaumont, dated February 14, 2022, was received that indicated: “In regard to the plans for project #C5147-01 The Woods Subdivision in the Village of Philmont which were provided to the fire company last month were fully reviewed and meet our approval. The Woods Road one way loop illustrated on plan page C-101.1 shows good accessibility for fire apparatus and presents no known issues for emergency vehicle operations.” (Dkt. No. 40). 13. In addition to addressing the stormwater run-off created by the site development, the stormwater design prepared by Tighe & Bond resulted in an improvement in the existing stormwater run-off conditions by collecting off-site stormwater run-off from uphill of this project and managing it to reduce flooding of homes along Summit Avenue, and also manage and treat stormwater runoff from the proposed development area. At the Planning Board meeting, the Village’s engineer provided his comment letter dated February 15, 2022, containing his technical review results to be address. (Dkt. No. 43). 14. On March 1, 2022, Tighe & Bond made an additional submission on behalf of Clover Reach which addressed each of the Village’s engineering technical comments. (Dkt. No. 31). 15. On March 10, 2022, Tighe & Bond made an additional submission setting forth a potential land exchange with the Village of Philmont regarding developer land to be exchanged with conservation lands owned by the Village. Eventually, however, the Applicant abandoned that request, and that proposal is not at issue in the present matter. (Dkt. No. 32). 16. The Planning Board reconvened on March 16, 2022 and continued the ongoing review of the project. At that meeting, Tighe & Bond presented a visual assessment of the potential visual impacts of the project from the vantage point of the North side of Summit Lake to the Board and the numerous members of the public present. The assessment consisted of 5 of 17 FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 utilization of a 3-dimensional terrain model, applying the photos over the model to show the project (1) without development; (2) with development; and (3) the pre-existing homes on the hillside of the prior development in the area, (Dkt. No. 33). As is evident on page 3 of Dkt. No. 33, there are numerous existing homes immediately adjacent to the project site that are currently visible from the requested assessment vantage point, and which homes will remain significantly more visible than those proposed in this project due to the measures being taken to retain trees, limit cut-and-fill grading and impose covenants mandating use of natural colors for roof and homes. 17. Also, during the March 16, 2022 presentation, an engineered line of sight rendering was submitted showing existing trees, and visual impacts of development. (Dkt. No. 34). The additional submissions with the visual renderings were likewise submitted to SHPO for review. A majority of the Planning Board members deemed the visual submissions adequate for review and full consideration of the project. 18. Furthermore, the Covenants and Restrictions discussed with the Planning Board on January 18, 2022, were provided in draft form. (Dkt. No. 37). While the Applicant was under no Zoning Code obligation to impose covenants and restrictions related to tree clearing, at paragraph 9, the Applicant provided the following self-imposed restrictions: 9. On each lot, tree clearing shall be limited to a maximum of 50% of the pre- development magnitude of trees sized at 12” diameter or more. A table of pre- development tree quantities at 12”+ diameter will be prepared for each lot, and clearing will be limited to 50% or fewer. Notwithstanding the foregoing, exceptions will be made for trees determined to be hazard trees, which trees may be removed for safety purposes if a tree is suffering insect damage, rot, and/or storm damage. Satisfactory documentation from an arborist or forester must be provided showing the hazard condition or deterioration of the tree that requires removal. Penalties for excess clearing will include a requirement that any trees improperly removed will be replaced, and until such action is undertaken, monthly recurring fines, as set by the Village, shall be imposed on anyone violating this Covenant. Remediation is defined as the replacement of any improperly cleared trees with trees of equal quantity and at least 4” in diameter, with the continuing obligation to maintain those trees or the required number of trees in perpetuity. 6 of 17 FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 19. The intent of the Covenants and Restrictions is to keep the project wooded and allow the existing vegetation to provide screening. This was also accomplished by imposing the mandatory use of natural materials or dark hues of a historic color collection for all structures built to mitigate visibility from the reservoir, through the woods. During the entirety of the Planning Board process, the Petitioners never provided evidence that being able to see single family homes, at least the ones that could be visible, would be a significant negative environmental impact for a parcel of land zoned for residential use. 20. At the March 16, 2022 Planning Board meeting, the SEQRA lead agency circulation was reviewed and deemed completed and the time for any responses had expired, so the Planning Board declared itself lead agency for SEQRA purposes. 21. The Planning Board advised the Applicant that based upon potential public concerns about the project, and the potential for concerns about environmental impacts, they wanted to conduct a public hearing that would allow the residents and community an earlier opportunity to receive and review the plans and submissions, and so a public hearing was set for May 17, 2022. 22. At the May 17, 2022, your deponent gave a comprehensive project overview, and the Planning Board opened the public hearing. Over 20 people spoke at the hearing regarding many aspects of the project, including those pertaining to the visual impacts of the housing. At the end of the meeting, the Planning Board indicated their desire to review and process the public comments and upon consent, the public hearing was continued and adjourned, so that additional public comment could be taken at a later date. (See Dkt. No. 39 containing the minutes of the public hearing). 23. On June 17, 2022, Tighe & Bond made an additional submission on behalf of Clover Reach, including minor adjustments to the subdivision plat to accommodate parcels that were to be owned by the Village from the previous subdivision approval. (Dkt. No. 35). The public hearing was continued, and Tighe & Bond continued its presentation in an effort to address prior issues or questions raised during the firstmeeting of the public hearing. Tighe & Bond explained that we had consulted with the Village Department of Public Works about the 7 of 17 FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 road, water and sewer and any concerns or issues were satisfactorily addressed. Tighe & Bond also addressed a number of public comments from the public hearing, including the manner in which stormwater was being managed to comply with required standards and applicable stormwater regulations. It was explained that Tighe & Bond established an engineering plan to improve the water quality by capturing stormwater runoff not just from the proposed development, but from the prior existing subdivision thereby resulting in a net reduction of peak runoff going to the lake from the hillside. As to animal species, specifically bats, project site tree clearing would only be undertaken at specific times of year in compliance with NYS DEC timing requirements. 24. At the June 17, 2022 meeting, the visual analysis undertaken by Tighe & Bond was again reviewed and showed the possible impacts, including the impact of the Village’s existing approximately 10 acre conservation area buffer between the project site and the south shore of Summit Lake, as well as the impact of minimal tree clearing on the visibility of the homes to be constructed in the subdivision. (See Dkt. No. 33). In reality, a majority of the Petitioners in this Article 78 proceeding own homes directly on Summit Lake, and have cleared the bulk of their lots, thereby exposing all others situate around the lake to a clear and open view of their homes. (See Dkt No. 5 showing the location of many of Petitioners’ properties). Furthermore, as the third page of Docket No. 33 shows, there are existing homes readily visible that adjoin the subject property. 25. During the continued public hearing, it was also noted that the Village has more than adequate water and sewer capacity for the project. Many members of the public who attended again commented on the project, including several abutters to the project who offered their comments. The Planning Board determined by a majority, that they were satisfied the Applicant addressed all comments and no further information or analysis needed to be provided. A motion to close the public hearing was made by the Planning Board. 26. On August 3, 2022, the Planning Board again convened to discuss the one-way loop road. As a result of concerns previously raised by Planning Board member Thomas Paino, Tighe & Bond had contacted the NYS Department of State, Division of Codes to review the 8 of 17 FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 regulations governing the minimum width of the proposed road in the subdivision. Specifically, I inquired as to whether the proposed one-way road needed to be not less than 20’ in width, as the NYS Code requires for two-way traffic, yet the Code does not mention or differentiate between a one-way road versus a two-way road. 27. As a result of that inquiry, the NYS Department of State, Division of Codes, Bryant Arms, Code Compliance Specialist, that stated: Our response: Fire apparatus will probably need to park within the FAAR [Fire Apparatus Access Road] during an emergency along with vehicles that belong to other emergency responders. The minimum widths specified by Sections 503.2.1 and D103.1 are intended to anticipate that. Remember that normal vehicle parking is not allowed within a FAAR at any time according to Section 503.4 of the FCNYS because there probably isn’t enough time to remove them during an emergency. However, Section 503.2.2 of the FCNYS enables the local authority having jurisdiction (AHJ) to modify the FNYS’s minimum widths for FAARs. So, you need to have the AHJ answer your question for a definitive answer. (Dkt. No. 41). 28. Based upon the provided email exchange, the NYS Division of Codes stated the determination of adequacy of the width of the FAAR (Fire Apparatus Access Road) was up to the Local Authority Having Jurisdiction (AHJ), meaning the Fire Chief, who had previously, in writing, on February 14, 2022, stated the road was adequate and provided “good accessibility”. (Dkt No. 40). The proposed one-way road will be signed with “No Parking” signs, with no parking allowed on the roadway at any time. 29. Additionally, as part of the Tighe & Bond submission of June 14, 2022, drawing C-101-.1 was provided which is an engineered CAD drawing demonstrating that the Village’s largest fire apparatus could navigate the road unencumbered. (See Dkt. No 35, at page 5). 30. The Planning Board also discussed the covenants and restrictions, together with their impacts and enforceability. The revised covenants contained a pre-construction table showing trees present on each lot and the necessity that prior to development, each building lot would need a pre-development tree survey. The covenants also provided for fines and penalties, including the requirement for tree replacement if the restriction is violated. The covenants also 9 of 17 FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 expressly prohibited parking on the roadway, and provided that the Village was a party and could undertake enforcement upon a violation. (Dkt. No. 38). 31. The Planning Board’s engineer then reviewed the SEQRA documentation, specifically the Part 2 of the SEQRA Long Form EAF, the board and engineer reviewed each and every question and where warranted, the board, the Applicant and Village engineer discussed the potential impacts with the board. Additionally, members of the public who were present were given the opportunity to comment on the discussions, and their comments were addressed by the engineers. The Planning Board found no significant negative environmental impacts, and issued a negative declaration by unanimous vote of the Planning Board. 32. The Planning Board then made a motion to approve the subdivision based upon all of the foregoing submissions, comments, responses and representations. Four of the five members voted to approve the subdivision, one member voted against approval, the motion carried, and the meeting adjourned. (See Minutes in Dkt. No. 39). 33. The approval was memorialized by a Resolution dated September 1, 2022, signed by the Planning Board Chairman, and filed in the office of the Village Clerk. (Dkt. No. 45). I. Petition’s Arguments A. Compliance with the Zoning Law Maximum Grade of Driveway 34. The Petitioners argue that the project does not comply with the Village zoning law §160-13(L), Driveways, in that the proposed driveways for the development exceed ten (10%) percent grades, and only one such driveway is in compliance. Such statement is simply incorrect. 35. First, the zoning law expressly states that where, “because of practical difficulty or unreasonable hardship affecting a particular property, the construction of a driveway grade” can be as steep as 15%. (See, Dkt. No. 1 @ page 15). Here, only two driveways identified in the plans exceed a proposed 15% grade, and thus, the remaining 14 are in compliance with the code. 10 of 17 FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 36. Second, the grades proposed by Applicant are simply that, ‘proposed’ grades. In the event the building department or the highway department require the construction of any particular driveway at a particular grade, the Applicant will comply with such requirement at the time the building permit is issued. 37. In an effort to address the Petitioners’ concerns regarding visual impacts with tree clearing and stormwater management, the Applicant advised the Planning Board that due to the project location on a hillside, the existing site grades would remain to the greatest extent practical. In other words, to regrade the hillside would require significant tree clearing and have a negative visual impact, as well as a negative impact on stormwater management at the site, which was already collecting stormwater from the previously built out development that was uphill from this project. Therefore, the proposed driveway grades are steeper to avoid the additional site grading. The Planning board considered and accepted that response, and as per the zoning law, we “demonstrated to the satisfaction of the Planning Board” the grades were justified. Minimum Width of Road 38. Petitioner’s next allege that the Respondent violated Village zoning law §127-11, Right of Way Width, in that the proposed right of way is less than 50’. 39. However, as set forth above, the Village code contemplates a two-way road, and not the unique one-way road proposed for this development. Here, the right of way width is commensurate with the width needed by the Village to properly maintain the road and its shoulders, drainage ditches and other appurtenances. 40. This one-way road plan was reviewed by the highway superintendent, the Fire Chief and the Village engineer, and all concurred that the proposed right of way width was adequate for the roads’ intended purpose as a one-way street. Further, the NYS Division of Codes representative advised that they deferred to the local fire chief to make the determination of adequacy under this situation. 11 of 17 FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 B. Compliance with the Village Law Completed Application 41. In their Second Cause of Action, Petitioners argue that there were violations of the procedural requirements of the New York State Village law during the approval process because the application could not be deemed complete until a SEQRA negative declaration was issued. 42. Here, a number of practical characteristics of this application and its process inform otherwise. 43. First, numerous members of the public were present throughout the entire application process, and often were given the opportunity to speak about their issues and concerns with the application regardless of whether a formal public hearing was opened or remained open. 44. Second, as early as February, 2022, the meeting minutes reflect that “SEQRA is done”. (See, Dkt. No. 39). Again, in April, 2022 at the outset of the public hearing, the meeting minutes reflect the fact that “SEQRA has been completed and submitted”. Thus, effectively, the Planning Board had made the determination to issue a SEQRA negative declaration without formally or officially voting on same well prior to the completion of the public hearing. 45. Third, in March, 2022, the Planning Board apparently deemed the application complete so as to schedule the public hearing, and afford those regularly present at the meetings a formal opportunity to weigh in on the potential environmental and project issues. In fact, the public and members of the Petitioner’s group expressly requested that they be allowed to speak to these issues earlier, and the Planning Board accommodated this request. 46. Had the Planning Board simply issued their negative declaration earlier, Petitioners’ would have been deprived of the opportunity to speak as to the environmental and SEQRA concerns they had. 47. Fourth, any changes made to plans and specifications after the determination to conduct the public hearing were minor and were undertaken to address public comments and concerns, or to reflect actual ownership in the Village of certain property adjoining the project. 12 of 17 FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 48. In fact, while the public hearing was “officially” closed on June 21, 2022, members of the public who were present at each of the subsequent meetings after the public hearing was closed were given the opportunity to speak and raise comments. In effect, the public hearing did remain open following the Board’s issuance of a negative declaration under SEQRA. 49. Notwithstanding, the Village Law provides that a public hearing must be held within 62 days of the submission of a complete preliminary plat [Village Law § 7– 728(6)(d)(i)(1)(a)], and the failure to issue a timely decision results in a default approval (see Village Law § 7–728[8]). 50. Thus, even without the public hearing following the completed application, Clover Reach was approved under the terms of the Village Law by default. 51. Importantly, the Petitioners point out no other damages, deprivations or negative consequences to allowing the public to speak early and often, because there were none. It is submitted that the public got complete and ample time to make comments on the project, and the Planning Board accepted and considered the comments, even when repetitive. C. The New York State Fire Code Access Road 52. The Petitioners next argue that the project does not comply with the New York State Fire Code because the road width is not 20 feet and no variance was obtained, and instead the road is only proposed at 12 feet with two-foot shoulders on each side for a total of 16 feet in width. 53. As set forth above, however, on this precise issue of the width necessary for a one-way road versus a two-way road, we contacted the New York State Department of State, Division of Codes, Bryant Arms, Code Compliance Specialist and were informed that the determination on road width was up to the local jurisdiction having authority, the local fire chief. 54. The Fire Chief had by letter dated February 14, 2022, approved the road finding it had good accessibility. (See, Dkt. No. 40). 55. Also, Tighe & bond undertook an AUTO-turn swept path computer-aided analysis of the proposed road, and found the Village’s largest fire apparatus had sufficient accessibility on the one-way road as designed. 13 of 17 FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 56. Because the NYS Division of Codes determined that the local fire company makes the determination, no variance was needed. (See, Dkt. No. 41). D. The Negative Declaration Does Not Violate SEQRA BOA Implications 57. In this proceeding, the Petitioners argue that because the Village is a participant in the New York State Department of State Brownfield Opportunity Area (BOA) process that this subdivision should not have been approved. The Brownfield Opportunity Area (BOA) Program provides state planning funds to community-based organizations and municipalities to develop community plans for areas with multiple vacant properties or brownfields. 58. When the issue of the existence of the BOA was raised by members of the public, and a request for a moratorium on subdivisions was made to the Village of Philmont Village Board, your deponent prepared correspondence to the Village Board dated January 10, 2022 responding to such request (Dkt. No. 44), stating as follows: With respect to the Village’s Brownfield Opportunity Area (BOA) process, we recognize the substantial effort made by the Village and the community to foster improvements within the Village. The Woods supports the revitalization of the Village by providing new housing in an area previously identified for residential development. Based on the New York State Department of State program fact sheet regarding the BOA program, a BOA within a community is focused on revitalizing and redeveloping neighborhoods affected by real or perceived environmental contamination due to past industrial use. Here is the NYSDOS fact sheet: https://dos.ny.gov/system/files/documents/2020/03/dos-boa-fact- sheet_2020.pdf Although the subject site is within the BOA study area, it is not one of the priority redevelopment sites slated for specific analysis under the BOA program nor is it within a designated subarea. The Woods amended subdivision is consistent with the elements of the BOA program, including creating linkages for the Village trail system and protecting Summit Lake. In addition, the Village’s website says: “The core of Philmont’s BOA, Summit Lake encapsulates the Village’s rich industrial history of innovative water-power engineering. Mills and artifacts of the watercourse contribute historical assets for area revitalization, and strategic sites in close proximity to Summit Lake will create opportunities for redevelopment and community development – including housing, (emphasis added) retail, commercial, and public amenities like lake-side parks—that will connect and 14 of 17 FILED: COLUMBIA COUNTY CLERK 11/10/2022 10:44 AM INDEX NO. E012022018817 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/10/2022 integrate the lake waterfront to key sites, downtown, and High Falls Conservation Area.” (See, Dkt. No. 44) 59. The BOA does not prohibit privately owned lands from being developed residentially in compliance with existing zoning laws for the Village. Furthermore, the actual area where this residential development is proposed is not designated as within the five BOA subareas identified as necessary for the implementation of the BOA plan. 60. Ultimately, after considering