Opinion
Index No. EF2021-68910
08-03-2022
In the Matter of the Application of Jennifer Brorsen, JUDITH RESNIK, K.W. DOHENY, ALAN FEIN, KAREN FEIN and SANDRA MARWILL, Petitioners, for a Judgment Pursuant to CPLR Article 78 v. Lake George Park Commission, LAKE GEORGE PROPERTY SERVICES, LLC, MIKE CARUSO, MICHAEL CYR and MELANIE CYR, DAVID MARTIN, TIMOTHY PRUSHA and PAMELA PRUSHA and ADIRONDOCKS OF LAKE GEORGE, LLC, Respondents.
Letitia James, Attorney General, Albany (Joshua M. Tallent of counsel), for respondent Lake George Park Commission. McPhillips, Fitzgerald & Cullum LLP, Glens Falls (Eric C. Schwenker of counsel), for respondents Michael Cyr, Melanie Cyr, David Martin, Timothy Prusha and Pamela Prusha. Maguire Cardona, P.C., Albany (Anthony V. Cardona, Jr. of counsel), for respondents Lake George Property Services, LLC, Mike Caruso and Adirondocks of Lake George, LLC.
Unpublished Opinion
Letitia James, Attorney General, Albany (Joshua M. Tallent of counsel), for respondent Lake George Park Commission.
McPhillips, Fitzgerald & Cullum LLP, Glens Falls (Eric C. Schwenker of counsel), for respondents Michael Cyr, Melanie Cyr, David Martin, Timothy Prusha and Pamela Prusha.
Maguire Cardona, P.C., Albany (Anthony V. Cardona, Jr. of counsel), for respondents Lake George Property Services, LLC, Mike Caruso and Adirondocks of Lake George, LLC.
Robert J. Muller, J.
In or around late 2018, Madison K. Finley and Alexander Nelson, as Trustee of the Betty Bryan Finley Irrevocable Gift Trust dated June 21, 2012 (hereinafter collectively referred to as Finley), contracted to sell approximately 22 acres of undeveloped property on the shores of Lake George in the Town of Bolton, Warren County to respondent Mike Caruso. This property includes 972 feet of lakefront on Basin Bay, as well as wetlands "described as a black spruce tamarack bog" [R0545]. It is bisected by Cotton Point Road, which is approximately 19 feet wide and runs closely along the lakeshore. In or around 1987, Finley's predecessors in title commenced an RPAPL article 15 action relative to the ownership of Cotton Point Road, with Supreme Court (Mercure, J.) entering a Judgment on September 17, 1987 whereby "fee title to [the roadway] remain[ed] in the name of the owner or owners of such premises... for the benefit of such owner or owners, their respective heirs, distributees and assigns [R1058], with "the Town of Bolton acquir[ing] a perpetual right of way and easement for the purpose of constructing and maintaining a public highway in and upon" the roadway [R1057]. Cotton Point Road is thus a privately owned public right of way, with ownership thereof also conveyed to Caruso.
All references to the Administrative Return will be denoted as R followed by the page number.
By all accounts, Finley and his predecessors in title maintained the subject property in pristine condition during their 92 years of ownership, "pa[ying] taxes on almost a thousand feet of lakefront and never develop[ing] anything" [R0937]. Finley further obtained permits for the placement of buoys 200 feet from the shore of their property in an effort to curb the presence of illegally anchored boats in Basin Bay, as well as obtained a no parking ordinance for Cotton Point Road to mitigate traffic congestion.
In early 2019, Caruso applied to the Town of Bolton Planning Board to subdivide the property into four separate lakefront lots with attendant residences. This application was subsequently approved by the Planning Board on December 18, 2019. In early 2020, Caruso applied to the Adirondack Park Agency (hereinafter the APA) for a permit authorizing the project. Annexed to the application was a "dock plan" prepared by Dickinson Associates [R0552], which plan depicted seven docks along the lakefront portion of the property, four with "[p]roposed [s]undeck[s]" and three with "[p]roposed [b]oathouse [r]oof[s]" [R0552]. On December 28, 2020, the APA issued a permit granting the application in its entirety. The APA found, inter alia, that the project
"[would] not cause an undue adverse impact upon the natural, scenic, aesthetic, ecological, botanical, fish and wildlife, historic, cultural, archeological, scientific, recreational or open space resources of the... area, taking into account the commercial, industrial, residential, recreational or other benefits that might be derived therefrom" [R0549].
Insofar as the proposed docks were concerned, the APA stated that "[a]ny dock constructed on Lots 1-4 must comply with the dimensional requirements established by the Lake George Park Commission" [R0547].
Meanwhile, in early December 2020 Finley applied to respondent Lake George Park Commission (hereinafter the LGPC) for a permit to build the seven docks. As depicted in the dock plan prepared by Dickinson Associates, "[e]ach dock was proposed as an E-shape dock, and was equipped with an open-sided boathouse having either a peaked roof or a sundeck that extended 15.8 feet above the mean high water mark" [Thouin Affidavit, at ¶ 9]. Joseph Thouin - an Environmental Analyst with the LGPC - processed the permit application, deeming it a major project because it involved the construction of multiple residential docks (see 6 NYCRR § 645-5.3 [c]). Thouin found that the project met the definition of a type II action under the State Environmental Quality Review Act (see ECL article 8 [hereinafter SEQRA]) and, as such, no further environmental review was required (see 6 NYCRR § 617.3 [f]). Thouin then provided public notice of the application (see 6 NYCRR 645-5.5). Specifically,
Although not entirely clear, it appears that Finley submitted this application because the deed conveying the property to Caruso was not recorded until January 2021.
"notice of a 15-day public comment period for the application was provided via email to the Town of Bolton, [the] APA, [the Department of Environmental Conservation (hereinafter the DEC)], DEC's Environmental Notice Bulletin, environmental advocacy groups that have a standing request to be provided notice for all major applications, and members of the public who had previously expressed interest in the subject application. In addition, although not statutorily or regulatorily required, public notice was also mailed to lakefront landowners within 1,000 feet of the project site and to all lakefront landowners who may traverse Cotton Point Road to access their lands" [Thouin Affidavit, at ¶ 10].
The LGPC thereafter received more than 90 letters in opposition to the application. All were submitted by nearby property owners - including, inter alia, petitioners Jennifer Brorsen and Judith Resnick - with the exception of one letter submitted by the Lake George Waterkeeper. The application was subsequently considered by the LGPC at its January 26, 2021 meeting, which was conducted virtually with "82 participants in [the] meeting" [R0931]. Comments were heard from members of the public including, inter alia, John W. Caffry, Esq. - counsel for Brorsen - Resnick, and petitioner Alan Fein. The majority of comments made in opposition fell into one of four categories:
By correspondence dated July 25, 2022, counsel for petitioners advised that Alan Fein passed away in May 2022. Counsel further stated that "Mr. Fein's interests in this proceeding were essentially the same as those of his sister Karen Fein, who is also a petitioner herein. They were both part-owners of the same family property on Basin Bay, known as Middle Brook Cooperative Corporation." Under the circumstances, the Court finds that substitution for Alan Fein is not necessary (see Paterno v CYC, LLC, 46 A.D.3d 788, 788-789 [2007]; see also Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C1015:4).
(1) seven docks with 28 boat slips for four residential lots is excessive and suggests more of a commercial enterprise;
(2) operation of the docks will lead to congestion and unsafe conditions on Cotton Point Road;
(3) Basin Bay has seen increased congestion and overcrowding in the past several years and the docks will serve only to exacerbate the problem; and
(4) the docks will have an undue visual impact, with this portion of Cotton Point Road offering "one of the few remaining unobstructed views in the southern Lake George basin" [R0883].
Alternatives were suggested by some, including the sharing of one dock by all four lot owners via an easement or a homeowners' association, or the clustering of docks in one or two areas. Ultimately the LGPC decided to "table" the application [R0989], with several members of the LGPC suggesting that a good compromise might be one dock for each of the four lots.
On February 3, 2021, respondent Lake George Properties Services, LLC - in which Caruso is a member - submitted a revised application proposing to build two uncovered L-shaped docks and two U-shaped docks with sundecks, with the L-shaped docks to be removable during the winter. The U-shaped docks were proposed with an inside slip of 24 feet to accommodate two vessels. A second notice of a 15-day public comment period was distributed that same date by Thouin to those same individuals and entities who received the first notice. Approximately 90 letters were submitted in opposition to the revised application, many written by the same people who opposed the original application - including Brorsen, Resnick and Alan Fein. Some new individuals also wrote letters in opposition, including petitioners Sandra Marwill and K.W. Doheny.
The revised application was considered by the LGPC at its February 23, 2021 meeting, also conducted virtually with approximately 80 participants. Comments were again heard from the public, with many opining that the revised application did not adequately address the problems raised relative to the original application. Some also felt that Caruso failed to sufficiently explore the alternatives suggested during the January 2021 meeting. Devin Dickinson - who designed the docks - responded to these comments and the LGPC then engaged in extensive discussion, ultimately passing a resolution at the meeting which approved the application with the following modifications:
"1. Require a [Certificate of Occupancy] for the house [on each lot] prior to dock construction [to] ensure there are bathrooms, garbage facilities, and adequate parking available to the landowners, which will mitigate many concerns associated with [the] application.
"2. [The] docks may only be utilized for single family residential use[, and] other multi-family, association, or commercial ventures [will be precluded] without prior [LGPC] review and approval....
"3. With respect to any future allocation of docks or moorings along the lakefront of the subdivision beyond what is presented in the application, each of the four lots shall be limited to no more than one dock and one mooring, subject to the permit and design standards of [LGPC] regulations.
"4. The boat house slip size [on the U-shaped docks] will be a single slip 12 [feet]" [R1883].
Eight members of the LGPC voted in favor of the resolution and one voted against it. The permit was thereafter issued to Caruso on March 15, 2021. Petitioners commenced this CPLR article 78 proceeding on April 13, 2021, alleging five causes of action:
(1) the permit should be annulled because the project will have undue visual impacts on the neighborhood and on the Lake George Park;
(2) the permit should be annulled because the additional boats that will be kept at the docks will cause overcrowding and congestion in Basin Bay;
(3) the permit should be annulled because the use and operation of the docks will lead to congestion and unsafe conditions for traffic and pedestrians on Cotton Point Road;
(4) the permit should be annulled because the LGPC failed to hold a public hearing on the application; and
(5) the permit should be annulled because the LGPC failed to comply with SEQRA.
The four lots in the subdivision have been sold to respondents Michael and Melanie Cyr, David Martin, Timothy and Pamela Prusha, and Adirondocks of Lake George, LLC (hereinafter Adirondocks), respectively, all of whom have been named as necessary parties.
At the outset, the Cyrs, Martin and the Prushas contend that the petition must be dismissed because petitioners lack standing. The Court, however, finds this contention to be without merit. "In land use matters... the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large" (Society of Plastics Indus. V County of Suffolk, 77 N.Y.2d 761, 774 [1991]; see Matter of Sierra Club v Village of Painted Post, 26 N.Y.3d 301, 310 [2015]; Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 N.Y.3d 297, 304 [2009]; Matter of Hohman v Town of Poestenkill, 179 A.D.3d 1172, 1173 [2020]; Schulz v Town Bd. of the Town of Queensbury, 178 A.D.3d 85, 88 [2019]). "Importantly, '[p]etitioners must have more than generalized environmental concerns to satisfy that burden and, unlike... cases involving zoning issues, there is no presumption of standing to raise a SEQRA or other environmental challenge based on a party's close proximity alone'" (Matter of Hohman v Town of Poestenkill, 179 A.D.3d at 1173-1174, quoting Matter of Village of Woodbury v Seggos, 154 A.D.3d 1256, 1258 [2017] [internal quotation marks, brackets and citations omitted]; see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 410 [1987]; Matter of Shapiro v Torres, 153 A.D.3d 835, 836 [2017]).
Here, petitioners have each submitted an affidavit establishing that they own lakefront property near the project site, with Resnik, Doheny, Karen Fein, and Marwill each stating that they have a view of the proposed site from their respective homes. Doheny's home is in fact located "directly across Basin Bay from the proposed site of the dock project[, and only] 1,000 [feet] distant from it" [Doheny Affidavit, at ¶ 2]. Further, Brorsen and Doheny state that Cotton Point Road offers the only access to their homes. Finally, all petitioners state that they regularly walk and jog along Cotton Point Road to enjoy the unobstructed views of the lake, and that they regularly swim, kayak, paddleboard, and water ski in Basin Bay. Under the circumstances, petitioners have demonstrated more than a generalized environmental concern relative to the project. Rather, the close proximity of their respective properties to the project site - combined with their regular and repeated use of the area - readily establishes an injury different from that of the public at large (see Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 N.Y.3d 297, 305 [2009] Matter of Saratoga Lake Protection & Improvement Dist. v Department of Pub. Works of City of Saratoga Springs, 46 A.D.3d 979, 982-983 [2007], lv denied 10 N.Y.3d 706 [2008]; compare Matter of Hohman v Town of Poestenkill, 179 A.D.3d at 1174).
Turning now to the merits, because this matter does not involve a determination made after a quasi-judicial hearing,
"[the Court's] review is limited to whether the determination lacks a rational basis and is, thus, arbitrary and capricious. An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts. If the agency's determination has a rational basis, it will be sustained, even if a different result would not be unreasonable. [The Court] may not substitute [its] judgment for that of the agency responsible for making the determination, and deference to the judgment of the agency, when supported by the record, is particularly appropriate when the matter under review involves a factual evaluation in the area of the agency's expertise" (Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency, 161 A.D.3d 169, 176 [2018], quoting Matter of Fuller v New York State Dept. of Health, 127 A.D.3d 1447, 1448, 7 N.Y.S.3d 668 [2015] [internal quotation marks, brackets and citation omitted]).
The LGPC - charged with the duty "to preserve, protect and enhance the resources of the park and the natural and scenic beauty of Lake George and its surrounding environs" (6 NYCRR § 645-1.1) - regularly reviews applications for docks, wharfs, and moorings (see 6 NYCRR § 646-1.1). Mindful of its expertise in this area and the relevant standard of review, the Court will address each cause of action ad seriatim.
(1) Permit should be annulled because project will have undue visual impacts.
6 NYCRR § 646-1.6 (a) provides, in pertinent part:
"Prior to granting any permit relative to a dock, wharf, mooring or marina, the [LGPC] shall ascertain the probable effect of the proposed facility and the operation thereof on the health, safety and welfare of the public and on the resources of the park. The [LGPC] shall also ascertain the impact of the proposed facility upon the congestion of Lake George and the probable visual, cultural and audible effects of the proposed facility on the neighborhood in which the facility is proposed and on the park. Where the [LGPC] determines that the facility will have an undue impact upon the health, safety, or welfare of the public or the resources of the park, lead to overcrowding or congestion, or cause undue visual, cultural or audible impacts on the neighborhood or the park, a permit shall be denied."
Here, Caffry retained landscape architect Matthew Allen to prepare reports relative to the visual impact of both the project as described in the original application and as revised. These reports - dated January 10, 2021 and February 18, 2021, respectively - were provided to the LGPC during the relevant public comment periods. Allen opined that there is "[l]ittle existing vegetation... between the road and water's edge to obstruct existing views to the lake" [R1540] and the project, even as revised, would be "detrimental to the scenic character of the local landscape, represent[] an undue impact on the scenic resources of the neighborhood and [be] inappropriate for [the] location" [R1543]. He supported this opinion with several digital renderings of how the proposed docks [would] appear once constructed. He included two versions of each rendering, one depicting how the docks would appear with parking on Cotton Point Road, and the other without. In this regard, although parking is not permitted on Cotton Point Road, petitioners contend that it will be inevitable given that the lots are roughly one-third of a mile from the proposed location of the docks. According to petitioners, the LGPC erroneously failed to consider these reports, and further failed to consider reasonable alternatives to the project with less of a visual impact.
The Court declines to find that the LGPC erroneously failed to consider Allen's reports. There is nothing in the record to suggest that the LGPC did not consider Allen's reports - which were discussed extensively by Caffry in both his written submissions to the LGPC and his comments during the January and February meetings. Rather, the record demonstrates that the LGPC chose to credit other evidence presented including, inter alia, the written submissions and renderings of the proposed docks presented by Dickinson in the revised application, as well as his comments during the meetings. In this regard, Dickinson stated as follows in the revised application:
"Parking: There is to be no parking on Cotton Point [R]oad. We feel that having (4) additional owners will help to police and curb unlawful activity. New dock structures and homeowners will also deter people from mooring too close to shore.
"Dock Clustering: This subdivision is approved for single family homes with no Homeowners Association. Creating a HOA will require further planning and approval from multiple agencies. It will also greatly reduce the value of the lots to have an HOA dock structure when compared to having private lake frontage. An HOA dock complex is not a feasible option for this project.
"Visual Impact: Cotton Point Road is lined with deciduous and evergreen trees ranging from 12- 15[ feet] in height along the shoreline of Lake George. This natural, dense vegetation will provide screening of the dock structures while traveling along Cotton Point Road" [R1279].
Dickinson then attached several photographs to illustrate the vegetation along the shoreline. Dickinson also prepared an aerial view of the proposed four docks, which demonstrates that they cover only 5% of the 972-foot shoreline and are spaced farther apart than many neighboring docks, thus reducing their visual impact. He explained during the February meeting that - unlike the initial, seven-boathouse proposal - the four docks included in the revised proposal, two of which are uncovered, serve to further reduce visual impact. Finally, in discussing the possibility of clustering docks at that meeting, Dickinson stated
"I think the other issue here as well is that, you know, this subdivision was designed, approved and sold with individual lakefronts. You know, to move to a homeowners' association dock completely changes the nature of the development and really devalues the lots. And you know, one interesting fact is these four lots are already either closed or in contract to close already. So we have multiple owners to deal with and they've really purchased these lots with their own private lake frontage" [R1771-1772].
Significantly, members of the LGPC also visited the proposed project site to get a firsthand view of the area - and ultimately declined to approve the U-shaped docks with an inside slip of 24 feet, instead approving an inside slip of only 12 feet.
"Applying traditional administrative law analysis, it makes no difference whether there was conflicting evidence or opinion which, if credited by the agency, might have supported a contrary conclusion, for a court has no authority to substitute its judgment for that of the agency so long as the agency's determination has a rational basis in fact" (see Matter of Save Our Forest Action Coalition v City of Kingston, 246 A.D.2d 217, 221 [3d Dept 1998] [citations omitted]). Although there existed evidence upon which the LGPC could have found an undue visual impact, there likewise existed evidence to the contrary - thus providing a rational basis for the LGPC's conclusion. Under the circumstances, the Court finds that petitioners' first cause of action is without merit.
(2) Permit should be annulled because additional boats will cause overcrowding and congestion in Basin Bay.
In 2016, the LGPC published the 2015 Lake George Recreation Study, which found that boat traffic in Basin Bay was at 290% of its carrying capacity. According to petitioners, the traffic has become worse since that time and the addition of up to 10 boats at these four proposed docks will serve only to exacerbate that problem. Petitioners thus contend that the permit must be annulled, as the project will have "an undue impact upon the health, safety, [and] welfare of the public[, and will] lead to overcrowding or congestion" (6 NYCRR § 646-1.6 [a]).
Once again, while the LGPC was presented with evidence that Basin Bay is overcrowded and congested - it was likewise presented with evidence that the proposed docks will not exacerbate the problem. The record is replete with references to overcrowding and congestion resulting from outside boats being illegally anchored in Basin Bay, as well as boats coming to and from Blue Water Manor, a resort located on Basin Bay. In this regard, Dickinson opined during the February 2021 meeting "that the addition of [the] new [lot] owners [may] help police and curb some of the unlawful activity that's already occurring that some of the neighbors have brought up" [R1770-1771]. Dickinson further stated as follows: "There were some concerns raised about boat traffic and congestion in the bay. Officer Johns has reviewed that and come to the conclusion there will be no safety issues created by this project as far as navigation and boat traffic" [R1769]. Indeed, Lieutenant Joe Johns, Direct of Law Enforcement for the LGPC, expressly found that "the application for the Finley property... poses no navigational issues. The area is shallow and there are currently buoys 200[ feet] from shore... to make a no anchoring zone" [R1321].
The Court recognizes that, according to Finley, he "put those buoys in[ and] the permit from the [Department of Environmental Conservation] is under [his] name and it is not transferable" [R1804]. There does not, however, appear to be any impediment to the current lot owners obtaining a similar permit themselves.
Under the circumstances, it cannot be said that the LGPC's conclusion that the project will not lead to overcrowding and congestion in Basin Bay is without a rational basis in the record. The Court thus finds that petitioners' second cause of action is also without merit.
(3) Permit should be annulled because docks will lead to unsafe conditions on CottonPoint Road.
Petitioners contend that Cotton Point Road is too narrow to accommodate the increased traffic that will result from the project. They further contend that pedestrians and parked cars will render it difficult if not impossible for emergency vehicles to pass through. For these reasons, petitioners contend the project will have "an undue impact upon the health, safety, [and] welfare of the public" (6 NYCRR § 646-1.6 [a]), and the permit must therefore be annulled.
The Court is not persuaded. The permit expressly states that cars are not to be parked on Cotton Point Road and the suggestion that parking is inevitable is purely speculative - as is the suggestion that pedestrians and parked cards will make it impossible for emergency vehicles to pass through. It must also be noted that the members of the LGPC conducted a site inspection and determined these concerns to be unfounded. Under the circumstances, there again exists a rational basis in the record for the LGPC's determination and, as such, petitioners' third cause of action is without merit.
Briefly, petitioners contend that the LGPC "improperly ignored relevant, uncontradicted expert testimony on the [p]roject's impact on public safety" [Kukle Memorandum of Law, at p 22]. Specifically, petitioners contend that "[o]ne of the public comments was from David Van Aken, a retired Traffic Safety Specialist for the New York State Police [who] concluded that the [p]roject, as it related to road safety, 'is fraught with danger'" [Kukle Memorandum of Law, at pp 22-23]. Indeed, Van Aken submitted comments prior to both the January and February meetings, with his first comments - sent on December 20, 2020 via email - indicating that "[a]s of December 24 of [that] year [he would] be 91 years of old" [R0900]. While these initial comments did not include his former position, he did mention it in his second comments - sent on February 15, 2021 via email. That being said, nowhere does he provide a list of his qualifications, a description of what his position entailed, nor when he held it - which was presumably some time ago. In the event the LGPC did not consider his comments to be those of an expert, it certainly had a rational basis for doing so.
(4) Permit should be annulled because the LGPC failed to hold a public hearing.
6 NYCRR § 645-5.6 (a) provides as follows:
"After the permit application for a project is complete and following the close of the public comment period, if required, the [LGPC] shall evaluate the application and any comments received on it to determine whether a public hearing should be held. If a hearing should be held, the applicant and all persons who have filed comments shall be notified by mail. The determination to hold a hearing shall be based upon: whether, in the [LGPC's] judgment, the application or public comments raise substantive and significant issues relating to any findings or determinations the [LGPC] is required to make pursuant to the ECL,... or rules or regulations promulgated thereunder, including the reasonable likelihood that a permit applied for will be denied or can be granted only with major modifications to the project because the project, as proposed, may not meet statutory or regulatory criteria or standards. Where any comments received from members of the public or otherwise raise substantive and significant issues relating to the application, and the resolution of any such issue may result in denial of the permit application, or the imposition of significant conditions thereon, the [LGPC] shall hold a public hearing on the application."
6 NYCRR § 645-5.6 (b) further provides:
"Mere expressions of general opposition to a project are insufficient grounds for holding a public hearing on a permit application. In order to raise substantive and significant issues, written comments expressing objection or opposition to an application must explain the basis of that opposition and identify the specific grounds which could lead the commission to deny or impose significant conditions on the permit."
Upon review, the question for the Court is whether the LGPC rationally declined to hold an adjudicatory hearing (see e.g. Matter of Beer v New York State Dept. of Envtl. Conservation, 189 A.D.3d 1916, 1920 [3d Dept 2020]; Matter of Riverkeeper, Inc. v New York State Dept. of Envtl. Conservation, 152 A.D.3d 1016, 1018-1019 [3d Dept 2017]; Matter of Eastern Niagara Project Power Alliance v New York State Dept. of Envtl. Conservation, 42 A.D.3d 857, 861 [3d Dept 2007]), with "petitioners b[earing] the burden of demonstrating that any issue relating to the application is both substantive and significant" (Matter of Beer, 189 A.D.3d at 1920).
Here, the Court finds that petitioners have failed to carry their burden. Under the LGPC's density regulations, up to nine docks are potentially allowable on the 972 feet of lakefront purchased by Caruso (see 6 NYCRR 646-1.1 [c] [7] [v]). The first application sought to construct seven E-shape docks, all equipped with an open-sided boathouse having either a peaked roof or a sundeck. Upon consideration of the concerns expressed by the public, the LGPC tabled that application. A revised application was then submitted which sought to construct two uncovered L-shaped docks and two U-shaped docks with sundecks, with the L-shaped docks to be removable. The LGPC rationally concluded that this revised application addressed all relevant concerns discussed at the January 2021 meeting and, further, that any remaining concerns were "[m]ere expressions of general opposition" (6 NYCRR § 645-5.6 [b]). In the absence of any substantive and significant issues which could potentially result in "denial of the permit application, or the imposition of significant conditions thereon" (6 NYCRR § 645-5.6 [a]), the LGPC rationally declined to hold an adjudicatory hearing. The Court therefore finds petitioners' fourth cause of action to be without merit.
(5) Permit should be annulled because the LGPC failed to comply with SEQRA.
Petitioners' fifth cause of action is likewise without merit. The project under consideration here was subject to APA review as a class A regional project and "actions subject to the class A or class B regional project jurisdiction of the [APA]" are type II actions which do not require review under SEQRA (6 NYCRR § 617.5 [c] [45]). As explained by the Third Department in Matter of Association for the Protection of the Adirondacks, Inc. v Town Bd. of Town of Tupper Lake (64 A.D.3d 825 [2009]),
"[t]he APA is charged with the duty to ensure that certain projects within its jurisdiction 'would not have an undue adverse impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the park' (Executive Law § 809 [9], [10] [e]). This environmental mandate predated SEQRA (see L 1973, ch 348; L 1975, ch 612, § 1) and, as reflected in the APA's regulations (see 9 NYCRR parts 570-588), it is more protective of the environment (compare ECL 8-0109 [1]). Accordingly, to avoid unnecessary duplication of review, the Legislature excluded actions subject to the APA's review from the requirements of SEQRA (see ECL 8-0111 [5] [c])" (Matter of Association for the Protection of the Adirondacks, Inc. v Town Bd. of Town of Tupper Lake, 64 A.D.3d at 827).
Here, the APA reviewed the entire project - including the initial proposal of seven covered docks, as depicted in the plan annexed to the application before the APA - and expressly found no undue adverse impact. Significantly, petitioners did not challenge the permit issued by the APA. The LGPC was thus correct in finding that the project met the definition of a type II action and did not require SEQRA review.
In conclusion, the Court has spent a great deal of time scrutinizing this nearly 2,000-page record and absorbing the arguments both for and against the project. At the end of the day, petitioners are very fortunate to have had the ability to enjoy the unobstructed views of Lake George from Finley's property - private property - these past 92 years. It was well within Finley's rights to sell this property for a subdivision, and it is well within the rights of the new homeowners to build docks on their respective lots (see e.g. Town of Oyster Bay v Commander Oil Corp., 96 N.Y.2d 566, 571 [2001]; City of New York v Anton, 169 A.D.3d 999, 1001 [2019], lv denied 34 N.Y.3d 906 [2019]; Kearns v Thilburg, 76 A.D.3d 705, 707 [2010], lv denied 18 N.Y.3d 801 [2011]; Matter of Haher's Sodus Point Bait Shop v Wigle, 139 A.D.2d 950, 951 [1988], lv denied 73 N.Y.2d 701 [1988]). Indeed, this was recognized by several members of the LGPC at the February 2021 meeting, with the following comments being made:
"Commissioner Kneeshaw: I believe that Mr. Caruso has acquired the deed and the ownership of all of that property, including the road. He owns the road. He owns the lakeshore that abuts the road. And I believe that he should enjoy the privileges and benefits of any lakeshore owner to put his docks out there in accordance with our regulations" [R1836].
"Chairman Young: [T]his is one of those situations where we've got some property that, obviously, the majority of the residents approve of the way it looks right now, they don't want it changed. Unfortunately, they don't own the property.... And we have an implicit understanding in our regulations that if a piece of property satisfies the regulations... for a dock, then a homeowner is entitled to a dock. In other words,... you are entitled to a dock as long as the dock satisfies our requirements. So [we] find ourselves in a position where we have to, in my opinion, give strong consideration to the applicant for the fact that they need a dock and they're entitled to a dock. The question is how much and how detrimental it is to your neighbors, because no matter what you're entitled to, you're not entitled to destroy your neighbors' rights. I know those two sound very contradictory, but they're actually the points at which we make all of our discussions and all of our decisions[. I]t's a question of protecting other peoples' rights while giving the basic homeowner his rights" [R1837-1838].
"Commissioner Floyd:... I agree with [Commissioner] Kneeshaw. They own the property. They've got almost a thousand feet of lakefront. They deserve to have docks. I was there. I visited this site. We parked six cars along that road and it had snowed the day before, so there were piles of snow along the side of the road so we really couldn't go far off. But there was still space for cars to go by where we parked. So the concern of car parking for a short period of time is going to cause major congestion, I don't see that.... And my whole point is that they own this property, they own the road and they should have the right to have a dock. I agree that we could put stipulations on it, one dock per lot and that you can't build your dock until you've got your [Certificate of Occupancy] for your property..." [R1842-1843].
Petitioners contend that - in stating that "you are entitled to a dock as long as the dock satisfies our requirements" - Chairman Young led the LGPC to misapply its own regulations. The Court, however, is not persuaded. While this was perhaps not the best choice of words, a complete reading of Chairman Young's comments - and the record as a whole - demonstrates that the LGPC engaged in an appropriate analysis under 6 NYCRR § 646-1.6 (a).
The record demonstrates that the LGPC made every effort to ensure that the proposed docks met the required regulations, initially tabling the application and then - when Caruso agreed to only one dock per lot - finding that the project would not "have an undue impact upon the health, safety, or welfare of the public or the resources of the park, lead to overcrowding or congestion, or cause undue visual, cultural or audible impacts on the neighborhood or the park" (6 NYCRR § 646-1.6 [a]). Change is certain and with it necessarily comes compromise. I recognize that, although petitioners may not be pleased with this result, there is clearly a rational basis in the record for it - and that is the only issue before me.
Based upon the foregoing, the relief requested is denied in its entirety and the petition is dismissed.
The Court has considered the parties' remaining contentions and finds that they are either rendered academic by this decision or are otherwise without merit.
Therefore, having considered NYSCEF document Nos. 31 through 41, 44, 45, 47 through 49, 51 through 63, 66 through 70, and 74; and having heard oral argument on July 29, 2022 with John W. Caffry, Esq. appearing on behalf of petitioners, Joshua M. Tallent, Esq. appearing on behalf of respondent Lake George Park Commission, Eric C. Schwenker, Esq. appearing on behalf of respondents Michael Cyr, Melanie Cyr, David Martin, Timothy Prusha and Pamela Prusha, and Anthony V. Cardona, Jr., Esq. appearing on behalf of respondents Lake George Property Services, LLC, Mike Caruso and Adirondocks of Lake George, LLC, it is hereby
ORDERED AND ADJUDGED that the relief requested is denied in its entirety; and it is further
ORDERED AND ADJUDGED that the petition is dismissed.
The original of this Decision and Judgment has been e-filed by the Court. Counsel for the Lake George Park Commission is hereby directed to promptly obtain a copy of the e-filed Decision and Judgment for service with notice of entry upon all other parties in accordance with CPLR 5513.