Averill Road Parties Have Day in Court

Templeton Foundation To Proceed with Geotechnical Testing Contingent Upon DEC Compliance

By DARLA M. YOUNGS
WAMPSVILLE

Following 90 minutes of oral argument on Thursday, April 6, Madison County Supreme Court Justice Hon. Patrick J. O’Sullivan has determined that the Templeton Foundation can move forward with geotechnical testing on its property at Averill Road in Cooperstown, in order to understand the subsurface conditions of the potential development site. However, in order to do so, Templeton must first satisfy the conditions of a Notice of Violation issued by the New York State Department of Environmental Conservation two days earlier.

Events Leading Up to April 6

DEC’s Notice of Violation is the latest action taken against Templeton, which seeks to build housing for Bassett Hospital employees on its Averill Road acreage. On January 18, environmental attorney Douglas H. Zamelis filed a petition in the Madison County Supreme Court on behalf of clients Michael Swatling and Carolyn O’Brien, in which they alleged that the Cooperstown Board of Trustees applied an incorrect standard when analyzing the proposed housing project’s environmental impact in light of the New York State Environmental Quality Review Act. Trustees had approved a Special Permit for the project on January 5.

Upon review of the complaint and realizing these allegations had merit, attorneys for all parties agreed the suit should be discontinued but with the full right of Templeton to reapply. The defendants “immediately capitulated,” Zamelis said to Judge O’Sullivan on Thursday.

Zamelis then filed a second petition on behalf of his clients on March 19, again in Madison County, contending the Averill Road housing project was already under construction without the necessary Special Permit from the village or proper stormwater management controls, and seeking an injunction against further work.

DEC Division of Water staff visited the site on March 24 and subsequently halted all work on the property until Templeton applies for and receives the required SPDES (State Pollutant Discharge Elimination System) permit.

“This letter serves to provide you with a Notice of Violation of 6 NYCRR Part 750-1.4(b) and Environmental Conservation Law (ECL) Sections 17-051 and 17-0803 and the Federal Clean Water Act (40 CFR Pat 122.26) for failure to obtain a SPDES permit prior to commencement of activities disturbing one or more acres…” wrote DEC Regional Water Engineer John Weidman in a letter dated April 4. “You are hereby notified that you must immediately cease all construction activity on the site including any clearing, grading and excavating and immediately stabilize all areas of disturbance.”

The Federal Clean Water Act requires stormwater discharges from construction, or activities that disturb one or more acres of land, to be authorized by a SPDES permit. The requirements are intended to reduce the water pollution caused by stormwater runoff, Weidman wrote. According to DEC, sewer connections and extensions must also be reviewed and approved.

DEC’s directive does not, however, preclude stabilization of the site or installation of erosion and sediment controls to prevent potential impacts to water quality. Templeton Foundation has until the end of day on Friday, April 14 to provide an explanation of work done to the site, photographs showing all areas stabilized and a description of the planned use of the site. The Notice of Violation made it clear that compliance with DEC’s requests now does not protect Templeton from any enforcement action initiated by the DEC for observed site deficiencies or water quality violations. Fines could be as much as $37,500.00 per day, per violation.

Judge O’Sullivan had issued a similar stop work ruling on March 23 in response to the March 19 petition filed by Zamelis—an Order to Show Cause With Temporary Restraining Order—preventing Templeton Foundation or its agents from any further work at the Averill Road property until issues between the parties could be heard and resolved on April 6.

Why Madison County?

At the outset of Thursday’s hearing, Judge O’Sullivan questioned Zamelis as to why he had chosen to file his petition in Madison County and indicated initially that he would like to transfer the case to Otsego County. Templeton’s attorneys had also made a motion to change the venue.

“I just don’t understand why you filed it here,” O’Sullivan said. “It should be brought in Otsego County.”

Zamelis argued that special “hybrid” proceedings are allowed within the judicial district. He later described the Averill Road property owner as “a very powerful interest” and “politically powerful”—referring to Jane Forbes Clark—whose holdings include Bassett Hospital, Templeton Foundation, the Clark Foundation, The Otesaga Resort Hotel, and both The Farmers’ Museum and Fenimore Art Museum, among others.

“That’s why this proceeding is not in Otsego County,” Zamelis said.

‘Largest Development in Decades’

Zamelis was first to speak before the judge. He described the Averill Road project as “the largest development in the village in decades,” and cited his clients’ concerns regarding noise, vibration, impact to water quality, and clearcutting of acres of trees.

“The Swatling property is literally in the jaws of Templeton’s property,” he said.

Zamelis referred to Templeton’s approach to the project as “text book segmentation,” which he said is “disfavored as a matter of policy.” According to Cornell Law School’s Legal Information Institute, segmentation is when an action is broken down into small parts in order to avoid the appearance of significance of the total action.

Regarding DEC’s Notice of Violation, Zamelis asked Judge O’Sullivan to deliver an injunction against Templeton because they did not get the necessary SPDES permit from DEC and did not have a stormwater plan in place.

“Please enjoin Templeton from any further work,” Zamelis entreated, citing severe financial hardship for his clients who, he said, continue to face irreparable harm.

Judge O’Sullivan countered, referring to DEC’s Notice of Violation: “How does DEC assist in mitigating further damage? Isn’t that what you want?”

Zamelis said the state doesn’t intervene in local zoning.

“If they [Templeton] put up a silt fence and hay bales, DEC will be happy. This is bad,” he said. “Real bad. The village crosses its arms and whistles.”

Judge O’Sullivan did not concur. He said the tree cutting was done on or about March 5, lasting 17 days, and the order to show cause was issued March 23, after the fact. Soil disruption, he pointed out, was limited to about 9,600 feet at the entrance to the property. The trunks and root systems remain and the soil in general was undisturbed.

“Sounds as though the only thing they say they are doing at this juncture is geotechnical testing,” the judge replied, which Zamelis termed “laughable.” Zamelis then asked for a fact hearing regarding the geotechnical testing and challenged the judge, asking why Templeton had not taken geotechnical samples before now.

“So you’re saying if the Order to Show Cause was not in place, they will pull stumps? Aren’t DEC a watchdog here to make sure things get resolved? Isn’t that our protection here?” asked O’Sullivan.

Zamelis insisted the State of New York “doesn’t give a darn about the village zoning law. It’s not their jurisdiction. It’s two different worlds,” he said. “This is your world.”

Why Averill Road?

Village attorney Martin Tillapaugh was up next, providing a brief description of the property—57 vacant, tree-covered acres—and the planned project.

The Averill Road property, Tillapaugh said, is at the end of a half-mile dead-end street in a heavily wooded, sparsely populated corner of the village. Once the site of a golf course, the property was abandoned in the 1920s when Leatherstocking Golf Course was created, he said.

Tillapaugh explained there are three residences along the road, only two of which are currently occupied, and a former four-bay ambulance garage.

“One unique remnant still working is the drainage system, an 18” underground pipe to a nearby sediment pond, the purpose of which is to collect water runoff, whether piped or natural,” Tillapaugh said. “The drainage system remains fully functioning and Zona [Templeton Foundation project engineer Rudy Zona] could not find any problems.”

Unlisted vs. Type 1 Action

Tillapaugh went on to say that in mid-November of last year the project was proposed in order to address a critical need for housing in the village. The necessary water and sewer connections were available and the property had been recently transferred from the Clark Foundation to Templeton, he said, to be used as a site to house new hospital employees.

“It was clearly and correctly an unlisted action at that time,” Tillapaugh continued. “Changes were then made at the request of the village and the applicant modified plans to improve access. The water tower is ancient and the applicants also agreed to provide a new water tank at a cost of $1.8 million.”

It was these changes, made at the request of the village, which caused the project to be termed a Type 1 rather than an unlisted action and the engineer didn’t realize it, Tillapaugh said.

“I resent the word ‘capitulated,” Tillapaugh added. “They [Templeton] realized the plaintiffs were correct and the project managers went back to the drawing board.”

Regardless of the error, he said, the village had conditioned its approval of the project upon receipt of a complete engineering study, including depth of water table, geotechnical testing, nature of the soil, compatibility and a traffic/road study.

“The plaintiff is asking the court to substitute its judgment for village judgement,” Tillapaugh said. “I assure you the village takes its job seriously and will run a proper SEQR Type 1 review.”

With regard to the tree cutting and disturbance to land at the property’s curb cut, Tillapaugh said the issuing of both permits by the village was ministerial, or administrative.

Curb cut permit is a misnomer, he continued—anyone can walk in and get one from either the village clerk or deputy clerk, not the zoning enforcement officer. Village ZEO Jackson Dubois was also named in the January 18 and March 19 complaints.

“Doug indicated to me that the ZEO issued the curb cut permit, but he did not. He does handle the timber cutting, which is also ministerial,” Tillapaugh added. “They can only cut 30 percent of the trees. Some stumps were removed in a very small area. Where stumps are left is not considered damaging to the soil. The soil is not disturbed because stumps and root systems remain.”

Tillapaugh also rebutted photographs submitted by Zamelis which show muddy, cloudy water emanating from the drainage pipe, saying the source of water in the pond is not coming exclusively from the Templeton land.

“I would argue the majority of the water is from other sources, for example the transfer station and the former landfill, and includes runoff from surrounding properties. There is absolutely no evidence whatsoever to prove the muddy water is caused by the Templeton property,” Tillapaugh said.

In closing, Tillapaugh asked the judge to make note that “Mr. Swatling purchased the property knowing this project was going in.”

Templeton Weighs In

Matthew E. Hamlin of Persun & Hamlin P.C., the Templeton Foundation attorney, was last to speak. He told Judge O’Sullivan that work undertaken was for the limited purpose of providing the Village of Cooperstown with information relative to SEQR’s Environmental Assessment Form, so the village can take a hard look as required by SEQR at the appropriate time.

“The project was merely misclassified,” Hamlin explained, saying no construction had been undertaken. “Thirty percent of the trees does not trigger SEQR. The curb cut is ministerial—admitted by attorney Zamelis—and does not trigger SEQR. If SEQR is not triggered, it’s not segmentation. Subsurface studies are exempt.”

Zamelis “is asking, incredibly so, for the court to find a positive declaration before SEQR. I think that’s a little premature,” Hamlin added.

Labeling the situation a “procedural morass,” Hamlin went on to say the complaint should have been filed in Otsego Court, contending that Zamelis “cobbled together a hybrid action and Article 78. Equities lay in favor of the land owner,” he said.

The Outcome

In considering the appeals made on both sides of the Averill Road issue, Judge O’Sullivan sought a resolution that would satisfy all parties.

“If I rule according to the law, my ruling may not be in your favor,” he cautioned Zamelis, after which a heated exchange ensued between judge and attorney.

“The only law potentially violated is being addressed by DEC. Other than that, they [the defendants] are in full compliance with village law,” O’Sullivan said when deliberations resumed.

Zamelis insisted that clearing and grubbing of trees is the first part of construction and reiterated that Judge O’Sullivan could order a fact trial regarding the specifics of the geotechnical testing.

“I would like to have Mr. Zona here, because I would like to cross-examine him,” Zamelis responded.

Again Judge O’Sullivan asked if opposing sides could come to an agreement if no further trees or stumps were removed and, again, Zamelis insisted on the specifics of the testing.

“We’re going to be back here,” Hamlin said, in response. “We have a good argument and Zona is eminently qualified. In fact, opposing counsel originally contacted Zona for engagement. We are not going to bow to counsel,” he said.

Judge O’Sullivan further cautioned Zamelis with regard to photographs he had submitted as evidence.

“Isn’t taking photos making you a witness in this case? You should not have made yourself a witness—you could be ordered out,” the judge said.

Ultimately, O’Sullivan said he would not rule on the law, pointing out that Templeton must complete its geotechnical testing in order to satisfy the requirements of the EIS. That information will be submitted to the village, he continued, and the village will say either yes or no. Opposing counsel has the opportunity to raise further issues in public hearings related to the project.

“The court decides to restrict and reduce the TRO with no final determination,” O’Sullivan said.

There will be no further removal of stumps or disturbance of soil on the Averill Road property other than what is deemed necessary for further testing. The judge acknowledged there will be limited disturbance—“far less than one acre”—as well as some chipping and removal of logs and brush to specifically facilitate that testing. Maintenance will continue on the temporary entrance and Templeton will honor the directive of DEC, Hamlin confirmed.

“They started in violation. You stopped them. Thank goodness you’re here—they’re doing it now,” Judge O’Sullivan said to Zamelis.

Official court documents have not yet been released.

Reactions

Attorney Douglas H. Zamelis: ““We intend to continue to press our solid claims to judgement, and appeal if necessary.”

Attorney Martin Tillapaugh: “The plaintiff’s attorney, Doug Zamelis, sought relief via a March 23, 2023 “Order to Show Cause” requesting a preliminary injunction preventing Templeton Foundation from undertaking any “on-site” work on its Averill Road property in the Village. At the same time, the Court also granted, based solely upon plaintiff’s allegations, a Temporary Restraining Order preventing Templeton from entering the property prior to the scheduled April 6 hearing. At the April 6return date and after hearing all parties, the Court modified the Temporary Restraining Order to once again allow Templeton’s employees and consultants to enter upon the property to continue the necessary preliminary site work and testing. The preliminary injunction the plaintiffs had requested was not granted. In my capacity as Village Attorney, I see the result of the hearing as a vindication of both the Village and Templeton’s continued assertion that neither have violated any laws or environmental regulations or caused any environmental harm relative to this project.”

Attorney Matthew E. Hamlin said his client is awaiting the court order prior to issuance of any statement.