Motion to Dismiss in Fort Salonga Property Owners Association, William C. Berg, Thomas P. Cleere, Mark C. Henry, Lisa Knopp, Andrew J. Rapiejko v. The Planning Board Of The Town Of Huntington, The Preserve At Indian Hills, Llc, The Northwind Group, Llc, Fort Slongo, Llc, The Maude D. Roberg Revocable Living Trust, Michael J. Cahill Trustee, Bruce Roberg| Trellis.Law

On May 19, 2023 a Motion-Secondary was filed involving a dispute between Andrew J. Rapiejko, Fort Salonga Property Owners Association, Lisa Knopp, Mark C. Henry, Thomas P. Cleere, William C. Berg, and Bruce Roberg, Fort Slongo, Llc, Michael J. Cahill Trustee, The Maude D. Roberg Revocable Living Trust, The Northwind Group, Llc, The Planning Board Of The Town Of Huntington, The Preserve At Indian Hills, Llc, for Special Proceedings - CPLR Article 78 in the District Court of Suffolk County.

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FILED: SUFFOLK COUNTY CLERK 08/03/2023 09:09 PM INDEX NO. 612800/2023
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/03/2023

STATE OF NEW YORK
SUPREME COURT: COUNTY OF SUFFOLK

THE FORT SALONGA PROPERTY OWNERS
ASSOCIATION, WILLIAM C. BERG, THOMAS
P. CLEERE, MARK C. HENRY, LISA KNOPP,
and ANDREW J. RAPIEJKO,

Petitioners,
Index No.: 612800/2023
v.

THE PLANNING BOARD OF THE TOWN OF
HUNTINGTON, THE PRESERVE AT INDIAN
HILLS, LLC, THE NORTHWIND GROUP, LLC,
FORT SLONGO, LLC, THE MAUDE D.
ROBERG REVOCABLE LIVING TRUST,
MICHAEL J. CAHILL, TRUSTEE, and BRUCE
ROBERG,

Respondents.

PETITIONERS’ BRIEF IN OPPOSITION TO
RESPONDENTS’ MOTIONS TO DISMISS

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .................................................................................................... 1
LEGAL STANDARD ..................................................................................................................... 2
ARGUMENT .................................................................................................................................. 3

I. PETITIONERS’ CAUSES OF ACTION WERE TIMELY FILED
WITHIN THE APPLICABLE STATUTE OF LIMITATIONS. ..................... 3
II. PETITIONERS HAVE ADEQUATELY ALLEGED IN THEIR
SECOND CAUSE OF ACTION THAT THE PLANNING BOARD
VIOLATED NEW YORK’S TOWN LAW SECTION 278(3) AND
UNLAWFULLY USURPED THE TOWN BOARD’S LAWFUL
ZONING AUTHORITY BY PURPORTING TO APPROVE THE
INDIAN HILLS DEVELOPMENT IN CONTRAVENTION OF
HUNTINGTON’S ZONING ORDINANCES. ................................................. 19
III. PETITIONERS HAVE ADEQUATELY ALLEGED IN THEIR
THIRD CAUSE OF ACTION THAT THE PLANNING BOARD
FAILED TO COMPLY WITH ITS OBLIGATIONS UNDER
SEQRA. ................................................................................................................ 24

A. Petitioners Have Adequately Alleged that the Planning Board
Failed to Take a “Hard Look” at the Significant Adverse
Environmental Impacts the Development Will Have on the Local
Huntington Community. ........................................................................... 25
B. Petitioners Have Adequately Alleged That a Supplemental
Environmental Impact Statement Is Warranted by the Numerous
Material Changes that the Developer Has Made to the Plans for the
Indian Hills Project Since the Planning Board Preliminarily
Approved its SEQRA Findings Statement. ............................................... 27

IV. PETITIONERS HAVE ADEQUATELY ALLEGED IN THEIR
FIRST CAUSE OF ACTION THAT THE PLANNING BOARD
VIOLATED BOTH NEW YORK’S OPEN MEETINGS LAW AND
THE HUNTINGTON TOWN CODE BY FAILING TO HOLD A
DULY NOTICED FINAL PUBLIC HEARING PRIOR TO
GRANTING CONDITIONAL FINAL APPROVAL TO THE
PROPOSED DEVELOPMENT. ....................................................................... 32

CONCLUSION ............................................................................................................................. 36

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TABLE OF AUTHORITIES

Cases

Bayswater Realty & Cap. Corp. v. Plan. Bd. of Town of Lewisboro, 76 N.Y.2d 460, 560 N.E.2d
1300 (N.Y. 1990) .......................................................................................................... 23, 24, 27
Brander v. Town of Warren Town Bd., 18 Misc. 3d 477 (N.Y. Sup. Ct. 2007) ........................... 40
Comm. for Environmentally Sound Dev., Inc. v. City of New York, 190 Misc. 2d 359 N.Y.S.2d
792 (N.Y. Sup. Ct. 2001) .......................................................................................................... 34
Cty. of Orange v. Vill. of Kiryas Joel, 44 A.D.3d 765 (2d Dep’t 2007) ....................................... 29
Dev. Don't Destroy (Brooklyn), Inc. v. Empire State Dev. Corp., 94 A.D.3d 508, 942 N.Y.S.2d
477 (1st Dep’t 2012) ................................................................................................................. 33
Doremus v. Town of Oyster Bay, 274 A.D.2d 390 (2d Dept.2000) .............................................. 30
Eadie v. Town Bd. of Town of N. Greenbush, 7 N.Y.3d 306 (N.Y. 2006).............................. 15, 16
Falanga v. Town of Farmington, 67 Misc. 3d 1231(A), 128 N.Y.S.3d 432 (N.Y. Sup. Ct. 2020)
....................................................................................................................................... 15, 16, 17
Gannett Co. v. City of Rochester, New York, 83 A.D.2d 755 (1981) ........................................... 36
Green Earth Farms Rockland, LLC v. Town of Haverstraw Plan. Bd., 153 A.D.3d 823 (2d Dep’t
2017) ......................................................................................................................................... 29
Grskovic v. Holmes, 111 A.D.3d 234, N.Y.S.2d 650 (2d Dep’t 2013)................................... 5, 7, 8
Guggenheimer v. Ginzberg, 43 N.Y.2d 268 (N.Y. 1977) ............................................................... 3
Haberman v. Zoning Bd. of Appeals of City of Long Beach, 94 A.D.3d 997 (2d Dep’t 2012) ...... 3
Historic Albany Found., Inc. v. Joyce, 26 Misc. 3d 1221(A), 907 N.Y.S.2d 100, 2010 WL
447048 (N.Y. Sup. Ct. 2010) .................................................................................................... 19
In Matter of Sullivan Farms IV, LLC, 134 A.D.3d 1275, 21 N.Y.S.3d 450 (3d Dep’t 2015) ...... 22
International Innovative Tech. Grp. Corp. v. Plan. Bd. of Town of Woodbury, 20 A.D.3d 531,
799 N.Y.S.2d 544 (2d Dep’t 2005) ..................................................................................... 18, 19
Jackson v. New York State Urban Development Corp., 67 N.Y.2d 400 (N.Y. 1986) .................. 30
Long Island Pine Barrens Soc., Inc. v. Plan. Bd. of Town of Brookhaven, 78 N.Y.2d 608, 585
N.E.2d 778 (N.Y. 1991) ........................................................................................................ 9, 10
MacFarlane v. Town of Clayton Plan. Bd., 216 A.D.2d 860, 629 N.Y.S.2d 156 N.Y. App. Div.
4th Dep’t 1995) ......................................................................................................................... 25
Matter of Essex County v. Zagata, 91 NY2d 447 (N.Y. 1998)..................................................... 15
Nichols v. Kruger, 113 A.D.2d 878, 493 N.Y.S.2d 605 (1985)...................................................... 8
Oshry v. Zoning Bd. of Appeals of Inc. Vill. of Lawrence, 276 A.D.2d 491 (2d Dep’t 2000) ...... 40
Oyster Bay Assocs. Ltd. P'ship v. Town Bd. of Town of Oyster Bay, 58 A.D.3d 855 (2d Dep’t
2009) ......................................................................................................................................... 31
Riverkeeper, Inc. v. Plan. Bd. of Town of Se. & Glickenhaus Brewster Dev., Inc., No. 11549/02,
2003 WL 2004173 (N.Y. Sup. Ct. Feb. 3, 2003) ...................................................................... 35
Sciolino v. Ryan, 81 A.D.2d 475 (4th Dep’t 1981) ....................................................................... 36
State Realty, LLC v. Ger, 63 Misc. 3d 155(A), 115 N.Y.S.3d 801 (N.Y. App. Term. 2019) ......... 3
Tonery v. Plan. Bd. of Town of Hamlin, 256 A.D.2d 1097 (4th Dep’t 1998) ............................... 30
Tupper v. City of Syracuse, 71 A.D.3d 1460 (1st Dep’t 2010) ..................................................... 28
Wallkill Med. Dev., LLC v. Catskill Orange Orthopaedics, P.C., 131 A.D.3d 601 (2d Dep’t
2015) ........................................................................................................................................... 2

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Zehner v. Bd. of Educ. of Jordan-Elbridge Cent. Sch. Dist., 91 A.D.3d 1349, 937 N.Y.S.2d 510
(4th Dep’t 2012) ........................................................................................................................ 36

Statutes

Public Officers Law § 103(e) ...................................................................................... 36, 37, 39, 40
Town Code Section 198-112(I) .................................................................................................... 18
Town Code Section 2-2 .......................................................................................................... 37, 40
Town Law Section 276(6)(b) ........................................................................................................ 38
Town Law Section 276(6)(d) .................................................................................................. 38, 39
Town Law Section 278 .......................................................................................................... passim

Rules

6 NYCRR § 617.6 ......................................................................................................................... 34
6 NYCRR § 617.9 ................................................................................................................... 31, 34
N.Y. C.P.L.R. 2001 ..................................................................................................................... 5, 7

iii

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Petitioners submit this brief in opposition to the motion to dismiss filed by Respondents

The Northwind Group, LLC, The Preserve at Indian Hills, LLC, and Fort Slongo, LLC (such

entities, collectively, “Northwind”) on July 7, 20231 and the motion to dismiss filed by Respondent

the Planning Board of the Town of Huntington (the “Planning Board”) on July 12, 2023 2 ,

respectively, and state as follows:

PRELIMINARY STATEMENT

Petitioners’ verified Article 78 petition (the “Petition”) seeks a judgment of the Court

vacating certain actions taken by the Planning Board, including at the Planning Board’s meeting

on April 12, 2023, concerning the proposed development of “an age restricted cluster residential

community” to be known as “The Preserve at Indian Hills” (the “Development”).3 Respondents

The Northwind Group, LLC, The Preserve at Indian Hills, LLC, Fort Slongo, LLC, The Maude D.

Roberg Revocable Living Trust, Michael J. Cahill, Trustee, and Bruce Roberg are, upon

information and belief, each the owners of the land on which the proposed Development would be

constructed and/or the applicants seeking to construct the proposed Development.4 At its meeting

on April 12, 2023, the Planning Board voted to grant “conditional final approval” to the final maps

for the Development.5

As alleged in the Petition, the actions taken by the Planning Board to approve the proposed

1
See NYSCEF Doc. Nos. 46 to 59.
2 See NYSCEF Doc. Nos. 60 to 70. Three named respondents in this Article 78 proceeding – (1)
The Maude D. Roberg Revocable Living Trust (the “Roberg Trust”), (2) Michael J. Cahill, who
was named in his capacity as the Trustee of the Roberg Trust, and (3) Bruce Roberg – neither filed
a timely motion to dismiss the Petition nor filed an Answer.
3 See Petition, NYSCEF Doc. No 1; NYSCEF Doc. No. 33 (Thomas John Hayes Sworn

Verification dated May 17, 2023); NYSCEF Doc. No. 30 (G. Crapanzano Attorney Affirmation
dated May 19, 2023).
4 See Petition ¶ 2.
5 See Petition ¶¶ 10-11.

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Development must be vacated because the Planning Board (1) exceeded its authority when it

permitted construction of 74-86 townhomes greatly in excess of the per-acre density permitted

under current zoning rules, (2) violated New York’s Open Meetings laws by failing to provide key

information to the public regarding the proposed Development and holding a purported “final”

public hearing years before Northwind had even finalized its plans, and (3) abdicated its role as

self-appointed lead agency for environmental review by (a) failing to consider the enormous

environmental effects of the Development to include widespread erosion and slippage of the

Development and golf course into the Long Island Sound and (b) failing to even consider the

necessity of a supplemental environmental impact statement after Northwind greatly changed the

scope of its proposed plans. 6

Northwind and the Planning Board have filed separate motions to dismiss attacking the

sufficiency of Petitioners’ pleadings.7 The motions are meritless because the Petition was timely

filed and, as detailed below, the Petition adequately alleges multiple unlawful, arbitrary and

capricious actions by the Planning Board in the course of its review and approval of the proposed

Development.8

LEGAL STANDARD

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) and 7804(f),

the Court must accept the facts as alleged in the complaint as true, afford the pleadings a liberal

construction, accord the plaintiff the benefit of every possible favorable inference, and determine

only whether the facts as alleged fit within any cognizable legal theory. See Wallkill Med. Dev.,

LLC v. Catskill Orange Orthopaedics, P.C., 131 A.D.3d 601, 603 (2d Dep’t 2015); Haberman v.

6 See Petition ¶ 3.
7 See NYSCEF Doc. Nos. 46 to 59 and NYSCEF Doc. Nos. 60 to 70.
8 See Petition ¶¶ 10-11.

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Zoning Bd. of Appeals of City of Long Beach, 94 A.D.3d 997, 1000–01 (2d Dep’t 2012). Whether

a plaintiff can ultimately establish its allegations is not part of the analysis in deciding

a motion to dismiss. Haberman, 94 A.D.3d at 1001 (2d Dep’t 2012). At this early stage, the legal

standard is “whether the pleading states a cause of action” and, if from “its four corners allegations

are discerned which taken together manifest any cause of action cognizable at law a motion to

dismiss will fail.” State Realty, LLC v. Ger, 63 Misc. 3d 155(A), 115 N.Y.S.3d 801 (N.Y. App.

Term. 2019) (quoting Guggenheimer v. Ginzberg, 43 N.Y.2d 268, 275 (N.Y. 1977)). When a

defendant raises evidence outside the scope of the pleading in support of a motion to dismiss, such

evidence is of no effect unless “it has been shown that a material fact as claimed by the pleader to

be one is not a fact at all and unless it can be said that no significant dispute exists regarding

it . . . .” Id. When evidentiary material is considered, “the criterion is whether the proponent of

the pleading has a cause of action, not whether he has stated one.” Guggenheimer v. Ginzburg, 43

N.Y.2d 268, 275, (N.Y. 1977).

ARGUMENT

I. PETITIONERS’ CAUSES OF ACTION WERE TIMELY FILED WITHIN
THE APPLICABLE STATUTE OF LIMITATIONS.

A. Petitioners’ Article 78 Petition Was Timely Filed in the New York State Courts Electronic
Filing System on May 18, 2023, and Pursuant to CPLR 2001, Counsel’s Technical Mistake
in Initially Filing the Petition in Sullivan County Does Not Render the Petition Untimely.

Respondents have moved to dismiss the Petition on statute of limitations grounds arguing

that the Petition was not timely filed by May 18, 2023.9 This argument has no merit. Despite

Respondents’ arguments to the contrary, the Petition was timely filed within 30 days of when the

Planning Board filed its April 12, 2023 resolution with the Town Clerk on April 18, 2023, and the

9See, e.g., Northwind’s Memorandum of Law (“MOL”), Dkt. No. 47, at pgs. 3-6; Planning
Board’s MOL, Dkt. No. 70, at pgs. 5-8.
3

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Court should correct the mistaken e-filing in Sullivan County and deem the Petition to have been

filed in Suffolk County as of May 18, 2023. The Petition was thus timely.

As set forth in Petitioners’ Affirmation submitted before this Court on May 19, 2023 at

Docket No. 30, Petitioners filed their Petition with all necessary exhibits and supporting materials

on May 18, 2023 via the New York State Courts Electronic Filing System, but counsel mistakenly

chose “Sullivan County” rather than “Suffolk County” from the drop-down menu. (May 19, 2023

G. Crapanzano Affirmation, Dk. No. 30 ¶¶ 3-6.) It was not until the next morning, on May 19,

2023, when Petitioners’ counsel received 31 emails from efile@nycourts.gov indicating that the

filing had been returned for correction due to filing in Sullivan County, that counsel became aware

of the issue. (May 19, 2023 G. Crapanzano Affirmation, Dk. No. 30 ¶ 7.) The Sullivan County

Clerk’s Office indicated to Petitioners’ counsel that transfer was not possible and that the Clerk

would remove the case from their docket, and Petitioners’ counsel immediately re-filed the Petition

along with a request that this Court correct the mistake and deem the Petition filed as of May 18,

2023. (May 19, 2023 G. Crapanzano Affirmation, Dk. No. 30 ¶¶ 8-11.)

N.Y. C.P.L.R. 2001 states that:

At any stage of an action, including the filing of a . . . petition to commence an
action, the court may permit a mistake, omission, defect, or irregularity, including
the failure to purchase or acquire an index number or other mistake in the filing
process, to be corrected, upon such terms as may be just or, if a substantial right of
a party is not prejudiced, the mistake, omission, defect or irregularity shall be
disregarded, provided that any applicable fees shall be paid. 10

In Grskovic v. Holmes, 111 A.D.3d 234, 972 N.Y.S.2d 650 (2d Dep’t 2013), the Appellate

Division, Second Department analyzed C.P.L.R. 2001 and found that the lower court should have

deemed a filing incorrectly made through the e-filing system as timely, nunc pro tunc, because the

10 N.Y. C.P.L.R. 2001 (emphasis added).
4

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purpose of the 2007 amendment to the C.P.L.R. “was to ‘fully foreclose dismissal of actions for

technical, non-prejudicial defects . . . .’” Grskovic, 111 A.D.3d at 241. In that case, the Court cited

C.P.L.R. 2001 to excuse a mistake by counsel of filing in a “practice” version of the online e-filing

system instead of the “live” version because the filing “was performed in a mistaken manner and

method, which courts are permitted to correct on terms that may be just”. Grskovic, 111 A.D.3d

at 242-43 (emphasis in the original). Petitioners’ mistaken filing via the New York State Courts

Electronic Filing system in Sullivan County mirrors the mistake at issue Grskovic, where the form

and substance of the filing was not at issue but a technical mistake resulted in the timely filing not

going to the right place. Petitioners took immediate action to rectify the issue, and it is thus just

to deem the filing in this Court as timely.

The Planning Board’s MOL formulaically recites the generally applicable 30-day statute

of limitations and cites to Petitioners’ Affirmation making the arguments outlined above, but never

addresses why it would be unjust or inappropriate for the Court to correct the mistaken manner

and method of the Petitioners’ filing via the Court’s e-filing system.11 Northwind’s Motion at least

addresses Grskovic, but does so only through a wholly-unjustified an ad hominem attack on

Petitioners and their counsel and through reliance on inapplicable caselaw.12

First, Northwind accuses Petitioners and their counsel of an alleged intentional “strategy”

and “goal” to “delay and upend this project to the greatest extent possible.” 13 Northwind cites no

factual support for this allegation, nor explains how Petitioners, in filing a complex, detailed

Petition on the last day of a short 30-day limitations period, engaged in any untoward behavior.

Northwind even bizarrely suggests that Petitioners should not be given the benefit of C.P.L.R.

11 Planning Board’s MOL at 15-18.
12 Northwind’s MOL at 5-6.
13 Northwind’s MOL at 5-6.

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2001 because, if e-filing hypothetically did not exist then Petitioners would not have been

permitted to e-file at all. Second, and more damaging to Northwind’s position, is that it does not—

and cannot—demonstrate that the correction of a filing date by a single day would be unjust or

cause Northwind any prejudice or harm. Third, Northwind makes the irrelevant argument that the

“Court does not have the power to extend the statute of limitations” but this ignores the plain,

undisputed fact that Petitioners timely filed their Petition with New York’s e-filing system.

Respondents also cannot show any prejudice from the correction requested. Petitioners’

counsel advised Respondents’ counsel well in advance of the due date that Petitioners would be

filing an Article 78 petition challenging the Planning Board’s actions, and the parties discussed

potential arrangements for service of the petition and supporting papers.14 Moreover, this is not a

situation where the difference in several hours before the initial e-filing and the corrected e-filing

had any effect whatsoever on Respondents’ procedural or substantive rights. Respondents’ time

to respond to the Petition was triggered not on the date of filing, but rather on the date of service,

which occurred after both the initial filing and the corrected filing. Respondents do not argue

(because they cannot) that there were any defects in service, that service was untimely, or that

Respondents lost any response time or other rights as a result of the error. 15 In situations such as

these, where “a substantial right of a party is not prejudiced,” C.P.L.R. 2001 requires that “the

14
J. Fribley Attorney Affirmation dated Aug. 3, 2023 at ¶ 2.
15Both Northwind and the Planning Board separately argue that the Petition in this matter was, in
some respects, “identical” to the earlier Article 78 petition filed challenging actions of the
Huntington Zoning Board of Appeals in connection with the Application (the ZBA Petition). See
Planning Board’s MOL at 3-4; Northwind’s MOL at 4-6. Taking at face value Respondents’
assertion that they view the issues raised in the Petition and the ZBA Petition as effectively
“identical”, it is hard to imagine how Respondents can credibly argue that they were prejudiced by
an e-filing delay of several hours in the second of two cases that they assert are “identical” in
scope.

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mistake, omission, defect or irregularity shall be disregarded.” N.Y. C.P.L.R. 2001 (emphasis

added).

Respondents take no issue with the substance of Petitioners’ May 18, 2023 e-filing and,

pursuant to Grskovic, the Court should therefore correct the technical defects of Petitioner’s May

18 filing where the substance of that filing is not at issue. This is especially true in light of the fact

that (1) Respondents have suffered no prejudice as a result and (2) Respondents could have

alternatively sought a transfer of the case from Sullivan County to Suffolk County. 16 In

conclusion, as in Grskovic, the Court can and should correct Petitioners’ technical mistake in using

New York State Courts Electronic Filing System, deem the Petition as having been timely filed in

Suffolk County as of May 18, 2023. See Grskovic, 111 A.D.3d at 241-43.

B. Respondents’ Motions to Dismiss on Statute of Limitations Grounds Rely on a Clear
Misreading of the Court of Appeals’ Holding in the Long Island Pine Barrens Case.

(i) Respondents Mischaracterize the Long Island Pine Barrens Decision.

Northwind cites the Court of Appeals’ decision in the Long Island Pine Barrens case and

argues that Petitioners’ Article 78 Petition should be dismissed as untimely because any challenge

to the proposed subdivision Development and/or SEQRA review was required to be filed within

16The propriety of correcting the filing is made evident by the fact that Plaintiffs could also have
sought to transfer the case from Sullivan County to Suffolk County, but opted to re-file instead to
expedite proceedings without the delay to be caused by a transfer motion. Under N.Y. Const. art.
VI, § 19(h), “the supreme court shall transfer any action or proceeding to any other court having
jurisdiction of the subject matter in any other judicial district or county provided that such other
court has jurisdiction over the classes of persons named as parties.” As such, the Court should
correct the e-filing error and deem the case timely filed because doing so would be just in light of
the fact that, as an alternative course of action, Petitioners would otherwise be entitled to a transfer
of the timely-filed Petition from Sullivan County to Suffolk County in any event, which would
moot Respondents’ statute of limitations arguments. See also Nichols v. Kruger, 113 A.D.2d 878,
878, 493 N.Y.S.2d 605, 606 (1985) (Appellate Division, Second Department reversing lower
court’s decision not to transfer case to proper court on motion).

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30 days of the Planning Board’s May 18, 2021 preliminary map approval resolution, and that any

such challenges were required to be filed no later than June 17, 2021. 17 Relatedly, the Planning

Board cites the Court of Appeals’ decision in Long Island Pine Barrens and argues that any

challenge to the SEQRA review process had to be filed by May 13, 2021. 18 Each of these

arguments for dismissal is meritless and relies on a misreading and mischaracterization of the

Court of Appeals’ holding in the Long Island Pine Barrens case, which is clearly distinguishable

from the facts of this proceeding, and which neither requires nor supports the dismissal of any of

Petitioners’ causes of action on statute of limitations grounds.

Respondents ignore key aspects of the Long Island Pine Barrens case that distinguish it

from the instant case. First, in Long Island Pine Barrens, the Article 78 petition “challenged the

approval of the [] project solely on the ground that it failed to comply with SEQRA.” Long Island

Pine Barrens Soc., Inc. v. Plan. Bd. of Town of Brookhaven, 78 N.Y.2d 608, 611, 585 N.E.2d 778

(N.Y. 1991) (emphasis added). Second, and dispositively, the Planning Board’s preliminary

approval decision in that case “took the significant step of accepting the preliminary plat without

placing any conditions upon approval of the environmental aspects of the project.” Long Island

Pine Barrens, 78 N.Y.2d at 614 (emphasis added).

Under those specific circumstances—where the Board’s approval of the preliminary plat

did not place any conditions upon approval of the environmental aspects of the project—the Court

of Appeals held that “the preliminary approval was final regarding SEQRA issues” and held that

an Article 78 petition that was filed “more than 30 days after the [Planning] Board’s preliminary

approval but within 30 days of the final approval” that only sought to challenge the project on

17 See Northwind’s MOL at pgs. 7-12.
18 See Planning Board’s MOL at pg. 13.
8

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SEQRA grounds was untimely and should have been filed on within the 30 days of the filing of

the Planning Board’s resolution granting preliminary approval to the project. Long Island Pine

Barrens, 78 N.Y.2d at 611-14.

Respondents’ reliance on Long Island Pine Barrens in support of their Motions to Dismiss

Petitioners’ Article 78 Petition challenging the approval of Northwind’s proposed Development is

inapposite because Petitioners’ causes of action in this proceeding are obviously distinguishable

from the Long Island Pine Barrens case in several key respects. Crucially, unlike the SEQRA

decision challenged in that case, both (1) the SEQRA Findings Statement that was approved by

the Planning Board at its meeting on April 7, 2021, and (2) the Planning Board’s May 18, 2021

preliminary approval resolution each set forth numerous conditions to the approval being granted

by the Planning Board, including conditions concerning “environmental aspects of the project.”

(ii) Conditions Set Forth in the Planning Board’s SEQRA Findings Statement

The Planning Board’s SEQRA Findings Statement approved on April 7, 2021 sets forth a

detailed list of “CONDITIONS WITH ANY APPROVAL” on pages 25 and 26, each of which

concern environmental aspects of Northwind’s proposed Development, including but not limited

to the following conditions:19

• “The applicant is required to carry out continued survey deformation monitoring in the area
of the bluff as was recommended by both the Town’s and applicant’s geotechnical
consultants. Monitoring of horizontal and vertical land movement will take place by use of
twelve (12) monitoring stations both north and south of the CEHA line that were
established as part of investigations described in the EIS.”

• “All sanitary wastewater from the proposed residential units and clubhouse will be treated
with I/A OWTS subject to [Suffolk County Department of Health Services] review and
approval, oversight of installation and monitoring of the effectiveness of the systems.”

19See Petition Exhibit 16 (NYSCEF Doc. No. 18) at p. 30-31.
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Thus unlike the SEQRA approval decision at issue in the Long Island Pine Barrens case, which

imposed no conditions concerning environmental aspects of the project, the Planning Board’s

SEQRA Findings Statement approved on April 7, 2021 explicitly made the Planning Board’s

SEQRA approval contingent on the occurrence of several future contingent events, including the

requirement that Northwind eventually obtain approval from the Suffolk County Department of

Health Services (SCDHS) for its proposed sanitary wastewater treatment plan—an approval which

Northwind had still not yet obtained on the date Petitioners filed their Petition in this proceeding. 20

Upon information and belief, as of the date of this filing, Northwind still has not obtained approval

from the SCDHS for its proposed sanitary wastewater treatment plan for the Development and

thus one of the key contingent “conditions” of the Planning Board’s approval of its April 7, 2021

SEQRA Findings Statement still remains unsatisfied to this very day.21

As set forth in the Petition, in March 2020 the Suffolk County Planning Commission had

previously highlighted the importance of the SCDHS’s environmental review of Northwind’s

proposed Development plans, commenting that:

“No preliminary or final approval should be granted until unit yield and density,
particular to sanitary waste disposal treatment methodology and remediation of
nitrogen effluence to the groundwater table, is established by the SCDHS [Suffolk
County Department of Health Services] pursuant to Memorandum 17 of the
SCDHS. Continued dialogue with the Suffolk County Department of Health
Services and Suffolk County Department of Public Works is necessary as soon as
possible. It is the belief of the Suffolk County Planning Commission that as there
is still significant discussion to be had between the Applicant and the
SCDPW/SCDHS as to sanitary flow, location and type of sanitary system, and
location of sanitary leeching areas. The Town, Applicant and SCDHS need to
reconcile the assumptions and models regarding unit occupancy, sanitary flow and
load from the proposed units in terms of density, usage of the proposed clubhouse
and the fertilizer turf management program for the golf course. It is understood that
a great amount of information and detail is required to consider the adequacy of
the soil filtration capabilities, and that Soil Test Borings must be performed at all

20 See Petition Exhibit 16 (NYSCEF Doc. No. 18) at p. 30-31.
21 See J. Fribley Attorney Affirmation dated Aug. 3, 2023 at ¶ 3.
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locations on the subject premises where sanitary systems and drainage systems are
intended and capable of serving their intended purposes without impacting ground
and surface waters.”22

In spite of the Suffolk County Planning Commission’s warning that “No preliminary or final

approval should be granted until unit yield and density, particular to sanitary waste disposal

treatment methodology and remediation of nitrogen effluence to the groundwater table, is

established by the SCDHS pursuant to Memorandum 17 of the SCDHS”, the Planning Board

approved the SEQRA Findings Statement on April 7, 2021, but this approval was made explicitly

contingent on the condition that Northwind obtain approval from the SCDHS for its sanitary

wastewater treatment plans, an event that still had not occurred as of the date Petitioners filed their

Petition initiating this Article 78 proceeding.

(iii) Conditions Set Forth in the Planning Board’s Preliminary Approval Resolution

Likewise, when on May 12, 2021, the Planning Board approved a written resolution, which

it subsequently filed on May 18, 2021, that resolved to grant preliminary approval to Northwind’s

“Preliminary Maps” for the Development (the “Preliminary Approval Resolution”), but explicitly

made that grant of preliminary approval contingent on and subject to the satisfaction of a long list

of certain conditions set forth on pages 3 to 6 of that Preliminary Approval Resolution.23 Among

other such conditions, the Planning Board’s Preliminary Approval Resolution explicitly

conditioned the Planning Board’s own grant of preliminary approval to Northwind’s “Preliminary

Maps” on the condition that Northwind obtain a favorable determination from the ZBA approving

Northwind’s development plans. 24 The Planning Board’s May 18, 2021 Preliminary Approval

22 Petition ¶¶ 125-128; see also Petition Exhibit 19 (copy of the Suffolk County Planning
Commission’s March 12, 2020 “Staff Report” and its related “Resolution No. ZSR-19-31”), p. 22
(emphasis added).
23 See Petition Exhibit 17 (NYSCEF Doc. No. 19) at p. 3-4.
24 See Petition Exhibit 17 (NYSCEF Doc. No. 19) at p. 3-4.

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Resolution states in relevant part:

RESOLVED, that the Preliminary Maps of The Preserve at Indian Hills dated
December 2017, revised on May 3, 2021, and received on May 5, 2021 are hereby
granted preliminary approval subject to the following conditions:
…
2. The applicant shall provide an interpretation from the Zoning Board of Appeals
that the proposed site plan does not require a hearing or any additional review by
the Zoning Board pursuant to Huntington Town Code, including but not limited to
Chapter 198-109 (I) and 198-110I(5), or the applicant shall provide other written
correspondence from the Zoning Board of Appeals with respect to the proposed site
plan.”25

Accordingly, the Planning Board’s grant of “preliminary approval” to the “Preliminary

Maps” for the Development in its May 18, 2021 Preliminary Approval Resolution was contingent

upon an event that had not yet happened, and might never happen: the condition that Northwind

obtain a favorable decision from the ZBA regarding its proposed Development (i.e. approval of

Northwind's Application for a modified special use permit).26 Ultimately, as alleged by Petitioners’

in their related pending Article 78 Proceeding against the ZBA, the ZBA’s legally defective vote to

approve Northwind’s special use permit application did not occur until December 15, 2022, and the

ZBA did not file its written findings setting forth the basis for that decision until March 10, 2023.27

Notably, the Planning Board’s Preliminary Approval Resolution also explicitly makes the grant of

25 See Petition Exhibit 17 (NYSCEF Doc. No. 19) at p. 3-4.
26 As evidenced by the fact the ZBA later required Northwind to submit an application for a
modified special use permit in connection with its proposed Development plan, and the fact that
the ZBA held a nearly 5-hour public hearing on Northwind’s special use permit application on
January 13, 2022, it became clear that the ZBA would not be providing an interpretation that “the
proposed site plan does not require a hearing or any additional review by the Zoning Board pursuant
to Huntington Town Code”. Petition at p. 23 n. 44. Accordingly, per the language of the May 12,
2021 Preliminary Approval Resolution, the Planning Board’s grant of preliminary approval was
contingent on the condition that the ZBA ultimately grant Northwind’s application for a modified
special use permit.
27 See Petition ¶¶ 106-113; see also Ex. C to J. Fribley Attorney Affirmation dated Aug. 3, 2023

(ZBA Written Findings filed Mar. 10, 2023).
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“conditional preliminary approval” subject to the condition that: “All conditions of the Findings

Statement, prepared by the Department of Planning and Environment and adopted by the Planning

Board on April 7, 2021, shall be addressed.”28 Accordingly, the same requirement in the SEQRA

Findings Statement that made the Planning Board’s approval contingent on the condition that the

SCDHS later approve the Development plans was also effectively incorporated by reference in the

Planning Board’s May 18, 2021 Preliminary Approval Resolution.29

Thus, unlike the SEQRA approval decision which was the subject of the Court of Appeals’

decision in Long Island Pine Barrens, which imposed no conditions concerning environmental

aspects of the project, the approvals granted by the Huntington Planning Board in its April 7, 2021

SEQRA Findings Statement and its May 18, 2021 Preliminary Approval Resolution imposed

numerous conditions on concerning environmental aspects of the Development, including at least

one material condition—that Northwind eventually obtain approval from the SCDHS for its

proposed sanitary wastewater treatment plan—that had still not been unsatisfied on the date that

Petitioners’ filed their Article 78 Petition. As discussed further below, Respondents therefore

cannot plausibly rely on Long Island Pine Barrens to support their contention that Petitioners’

claims challenging aspects of the subdivision and SEQRA review processes are time-barred.

(iv) Petitioners Did Not Suffer a “Concrete” Injury from the Planning Board’s Actions
— and Thus No Challenge to Those Actions Was “Ripe” For Adjudication—Until,
at the Earliest, the Planning Board Granted “Conditional Final Approval” to the
Final Maps for the Development in Its April 18, 2023 Resolution.

As noted above, Northwind argues erroneously that the Court of Appeals’ decision in Long

Island Pine

Case Info

Judge

Joseph Farneti Track Judge’s New Case

Case No.

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Document Filed Date

August 03, 2023

Case Filing Date

May 19, 2023

County

Parties

Andrew J. Rapiejko Plaintiff
Bruce Roberg Defendant
CARROLL, PATRICIA MARY Attorney for the Defendant
CRAPANZANO, GREGORY ALBERT Attorney for the Plaintiff
Fort Salonga Property Owners Association Plaintiff
Fort Slongo, LLC Defendant
FRIBLEY, JAMES WESLEY Attorney for the Plaintiff
Lisa Knopp Plaintiff
MACY, JOSEPH EDWARD Attorney for the Defendant
Mark C. Henry Plaintiff
Michael J. Cahill Trustee Defendant
NAPOLITANO, DONNA ANNE Attorney for the Defendant
PASCA, ANTHONY CHARLES Attorney for the Defendant
The Maude D. Roberg Revocable Living Trust Defendant
The Northwind Group, LLC Defendant
The Planning Board of the Town of Huntington Defendant
The Preserve at Indian Hills, LLC Defendant
Thomas P. Cleere Plaintiff
William C. Berg Plaintiff
PAUL EHRLICH Attorney
JAMES MILLIKEN Attorney
MARA MANIN Attorney
JOHN BENNETT Attorney
JOHN BRESLIN Attorney
PHILIP EHRLICH Attorney
KARL HUTH Attorneys for Plaintiffs
DARRIN BERGER Attorneys for Defendants
JAMES GATHMAN Attorneys for Defendants

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