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New Scotland Archives — The Altamont Enterprise, February 2, 2012

Suit sparked by planning issues may go to state’s highest court

NEW SCOTLAND — A recent decision in a suit against the town may be appealed to the state’s highest court.

Peter Lynch, representing William Cade, said this week that he is considering filing a motion to the Court of Appeals, the highest court in New York’s three-tiered system. It chooses to hear cases that will yield precedent-setting opinions.

Cade brought the initial suit late in 2009, citing the failure of municipal boards to properly coordinate throughout the lengthy planning process before the town approved a water tower in the proposed Kensington Woods housing development. Plans for the 169-house subdivision on the old Tall Timbers golf course on Hilton Road have been underway since 2005.

Since it was under the jurisdiction of the zoning board of appeals to grant a variance for the water tower, which will be roughly twice the height allowed in the town’s zoning code, that board should have been included as an involved agency during the State Environmental Quality Review process, Lynch argued.

The failure of the planning board, which was the lead agency in the process, to name the zoning board of appeals as an involved agency violated SEQR procedure, Lynch argues.

In order to assure that the substance of the law is applied in SEQR, Lynch said this week, procedure has to be followed. The Jan. 26 decision from the Appellate Division, the state’s middle tier, says, “the failure to include the ZBA as an involved agency under these circumstances was inconsequential for purposes of the Planning Board’s SEQRA review.” So, Lynch said, the court didn’t find that there was no procedural error; it just chose to uphold the lower court’s decision.

If he were to approach the Court of Appeals, he said, he would ask, “Where do you draw the line on procedural error in SEQR?” It is an issue with statewide significance, he said.

“Certainly that’s his right to do that,” Jeffrey Baker, lawyer to the town’s planning and zoning boards, said this week of taking the case to the Court of Appeals.

Lynch has 30 days to file a motion.

By Saranac Hale Spencer

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