SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ORANGE
NINTH JUDICIAL DISTRICT ENVIRONMENTAL CLAIMS PART

VILLAGE OF SOUTH BLOOMING GROVE et al.,

AFFIRMATION OF
Petitioners,

GEDALYE SZEGEDIN

For a Judgment Pursuant to Article 78 of the Civil

Index No. 7410/2015

Practice Law and Rules

Proceeding No. 1
Hon. Francesca E. Connolly

- against VILLAGE OF KIRYAS JOEL BOARD OF TRUSTEES et al.,

Respondents,
EMANUEL LEONOROVITZ et al.,

Additional Respondents.

PRESERVE HUDSON VALLEY et al.,

Petitioners/Plaintiffs,

Index No.: 8118/2015

Proceeding No. 2

- against TOWN BOARD OF THE TOWN OF MONROE et al.,

Respondents/Defendants.

STATE OF NEW YORK

)
: ss.:

COUNTY OF ORANGE

GEDALYE SZEGEDIN, duly affirms1 the following to be true under penalties of

perjury:

I make this affirmation, in place of an affidavit, because I am prohibited from swearing by my faith.

1.

I am the duly appointed Village Administrator and Village Clerk of the Village of

Kiryas Joel (the "Village" or "Kiryas Joel") and have served in one or both of these positions
since 1991. In that capacity, I have been intimately involved with Kiryas Joel's participation in
the annexation process instituted by the two petitions for annexation of 507-acres and 164-acres
of territory from the Town of Monroe (the "Town") to the Village of Kiryas Joel at issue in this
proceeding (the "507-acre annexation" and the "164-acre annexation," respectively) and the
various efforts by outside groups and individuals to oppose the annexations.

I have personal

knowledge of the facts underlying this proceeding, as well as those stated herein.
2.

I respectfully submit this affirmation in opposition to the Amended Petitions and

Complaints filed by Petitioners Village of South Blooming Grove, Town of Blooming Grove,
Village of Monroe, Village of Woodbury, Town of Woodbury, Village of Harriman, Village of
Cornwall-on-Hudson, County of Orange (on behalf of itself and Orange County Sewer District
No. 1), Town of Chester, Monroe Joint Fire District, and The Black Rock Fish and Game Club
of Cornwall, Inc. (collectively, the "Municipal Petitioners") in Proceeding No. 1 and Petitioners-

Plaintiffs Preserve Hudson Valley, John Allegro, Emily Convers, and Louis M. Cerqua
(collectively, the "PHV Petitioners") in Proceeding No. 2 (the Municipal Petitioners and the
PHV Petitioners are hereafter collectively referred to as "Petitioners").

The Village also seeks

summary judgment dismissing all plenary and declaratory judgment claims, particularly, the

first, second, and third causes of action asserted in the PHV Petitioners' Amended Petition and
Complaint.
3.

The Village of Kiryas Joel was incorporated in 1977.

Since that time, it has

operated in accordance with all relevant applicable laws in New York State like any other village

government and municipal corporation in the State.

4.

On or about December 27, 2013, the owners of certain real property in the Town

of Monroe, New York, presented a petition for the annexation of 177 tax lots, encompassing
approximately 507 acres, from the Town to the Village. Nor does the Village Board have any

official short or long-term plan for use or development of these private lands.
5.

While the municipal boards awaited the resolution of a State Environmental

Quality Review Act ("SEQRA") lead agency dispute that substantially delayed consideration of

the 507-acre annexation for nearly 12 months, on or about August 20, 2014, the Village and
Town of Monroe received the 164-acre annexation petition from private property owners seeking
the annexation of 164 acres of land in the Town to the Village.

6.

The annexation petitions were solely for the annexation of this territory to the

Village; they did not contain any development proposal or proposed change in use of these lands.
7.

After a thorough and reasoned review pursuant to SEQRA, with significant public

input, on September 6, 2015, the Village Board issued its written order determining that the

proposed 507-acre and 164-acre annexations were in the overall public interest.

On September

8, 2015, the Town Board of the Town of Monroe approved the 164-acre annexation, but
disapproved the 507-acre annexation.
8.

On November 9, 2015, the Town conducted a special election on the 164-acre

annexation pursuant to General Municipal Law 713, enabling the voters within the annexation

territory to be heard on whether they also believed the annexation was in the overall public
interest.

The residents within the territory to be annexed approved that measure by an

overwhelming majority.

The completion of the annexation process, through Village enactment

of a local law memorializing it, now remains pending the outcome of these proceedings.

9.

Upon annexation, the use and development of lands annexed to the Village will

become subject to the Village Code, including the zoning code.

Likewise any development

proposals for such lands will be subject to the appropriate SEQRA review as well as all other

relevant local, State, and federal laws and regulations.

10.

The population of the Village is approximately 23,000.

The character of the

Village community is based on smart growth principles such as extensive transit services
available to and used by the community, the integration of places of employment and

neighborhood commercial services close to facilities for housing; and walkways and walkway
easements on site plans and subdivision plats containing residential units. The Village and the
area surrounding it have been identified by the Orange County Comprehensive Plan as a
"Priority Growth Area," a planning designation designed to differentiate between urban areas,
where density and infrastructure investments are most appropriately focused, and rural areas.
Indeed, the character of the Village community has been lauded by the New York State

Department

of

Environmental

Conservation

("NYSDEC")

Commissioner

as

"more

environmentally sustainable" (TVJR. 719).

11.

These proceedings are simply the latest efforts in a long-standing campaign by

certain residents and municipalities within Orange County to challenge the continued existence

and future natural growth of Kiryas Joel, and, ultimately, to exclude the Hasidic Jewish
community from Orange County. The primary strategy in this campaign has been for Petitioners
to relentlessly oppose and interfere with every effort by Kiryas Joel to provide basic municipal
services, such as water and sewage treatment, in an effort to drive up Kiryas Joel's operating
costs and prevent Kiryas Joel from providing such services to its residents.

12.

Tellingly, these efforts have often included, as here, Establishment Clause

challenges to the very existence of Kiryas Joel, premised on the theory that the Village, itself, is
unconstitutional simply by virtue of the religious character of its population. Indeed, Petitioners

persist in claiming here that the Town and Village boards' votes in favor of the 164-acre
annexation are an unconstitutional delegation of political power over the annexed land based on

religious criteria. Such claims fly in the face of the recent decision by the United States Court of
Appeals for the Second Circuit holding that the continued existence of the Village of Kiryas Joel
does not violate the Establishment Clause. Kiryas Joel Alliance v Village of Kiryas Joel. 495 F.
App'x 183, 190 (2d Cir. 2012).

Ignoring this clear federal precedent, the PHV Petitioners have

repeatedly persisted with this specious argument, including, as described below, making implicit
threats to the Monroe Town Board (see Exhibit V, infra).

More to the point, Petitioners'

insistence on making such religious-based claims reveals the true nature of Petitioners'
opposition to Kiryas Joel's municipal actions.

13.

It is also telling that, while Petitioners' previous attacks on Kiryas Joel have often

(as here) been ostensibly based upon a purported desire to enforce SEQRA and other
environmental regulations, Petitioners have not similarly scrutinized and opposed non-Kiryas
Joel development or non-Kiryas Joel municipal actions within Orange County.

Indeed, I have

been Village Administrator for 25 years, and while the Municipal Petitioners have routinely
challenged virtually every municipal action taken by Kiryas Joel over that time, I have never

seen similar efforts against other municipalities or private development projects. For example,
Petitioners recently have endorsed large regional development projects, without the least amount
of scrutiny as to impacts on growth, community water, sewage treatment capacity, community

character, traffic, or other "environmental" issues, including the two recent casino development

projects proposed in the County, the recent expansion of Woodbury Commons Outlet Center, the

proposal to develop a "Legoland" amusement park in Orange County, and, most recently, the
construction of "Cabela's Commercial Plaza," comprising a 86,540 square foot retail building

and two restaurants of 4,770 square feet each in the Village of Woodbury. Yet, here, in this very
case alone, the Municipal Petitioners have pledged tens of thousands of dollars of public tax

dollars in an effort to interfere and exert unwarranted control over the Kiryas Joel community.
14.

Plainly, the true objective of Petitioners' continued opposition to Kiryas Joel's

municipal actions is to socially engineer and prevent any growth of the Kiryas Joel community in
Orange County.

Indeed, political campaigns in Orange County and Woodbury have routinely

identified stopping Kiryas Joel's development as core platform points.

Examples of campaign

literature to this effect are collectively attached hereto as Exhibit A.

15.

Notably, Petitioners are challenging Kiryas Joel's actions despite not having any

legal interest in the annexation.

As set forth in the accompanying memorandum of law,

Petitioners clearly lack standing.

Even the individual PHY Petitioners live outside of the

affected annexation territory, and Mr. Allegro and Ms. Convers live over 4,000 feet away, as
shown on the Orange County GIS map attached hereto as Exhibit B.
16.

In short, as with all of Petitioners' prior attacks against Kiryas Joel, the tone and

substance of Petitioners' claims herein undeniably demonstrate that these proceedings are once

again not at all about the municipal annexation process and accompanying SEQRA review, but
rather about stopping the Village's growth and challenging its very existence. Accordingly, it is
necessary to briefly outline the tortured history of Petitioners' campaign against Kiryas Joel, in
order to provide the Court with the context necessary to fully understand the motives behind the
instant dispute.

A.

The Incorporations of the Village of Woodbury and the Village of South Blooming

Grove to Preclude the Natural Growth of Kiryas Joel.

17.

The Municipal Petitioners have opposed Kiryas Joel's

existence

since its

incorporation, and have initiated innumerable legislative and judicial actions designed to limit or
interfere with Kiryas Joel's natural growth.
18.

For example, in 2006, a new "Village of Woodbury" was created specifically to

exclude the Kiryas Joel community from the Town of Woodbury.

At that time, the Hasidic

Jewish population in Woodbury largely resided and had purchased a significant number of
parcels in close proximity to Kiryas Joel, and the Town of Woodbury apparently became
concerned that these residents would file a petition to form their own Village in the vicinity of
Kiryas Joel, as is a clear legal entitlement pursuant to Village Law 2-202. In a strategic effort

to preclude its Hasidic Jewish residents from exercising this right, the Village of Woodbury was
incorporated within the exact borders of the Town of Woodbury, leaving out only the Village of
Harriman. By creating a Village that is coterminous with the Town, Woodbury sought to

preclude the formation of any other Village within the Town's borders, especially one by Town
residents that associate themselves with the Kiryas Joel community in the vicinity of the Village.
19.

Upon incorporation, the Village of Woodbury then strategically attempted to

prevent the further settlement of Hasidic Jewish families in the areas of the Town adjacent to
Kiryas Joel by adopting a Comprehensive Plan, Zoning Amendments, and a Religious Land Use
Local Law that created barriers to the development necessary to suit the Hasidic Jewish
community, which by the nature of the religious practices of its members requires compact, high-

density, family-friendly neighborhoods where the members may walk to the synagogue on the
Sabbath. Woodbury's comprehensive planning process was unabashedly designed and intended

to address, among other things, perceived pressures associated with "the rapid growth of the
neighboring Village of Kiryas Joel," and expressly purported to preclude the walkable mixed-use
communities required by the Hasidic Jewish residents.
20.

Woodbury's attempt to use its Comprehensive Plan to prevent "Kiryas Joel-type

development" was rejected by this Court. A copy of the Court's decision is attached hereto as
Exhibit C.
21.

Tellingly, by that time, Woodbury had already commenced the State legislative

process for dissolution of the Village of Woodbury.

However, and most revealing of all, a

specific condition was added to the Woodbury dissolution legislation, a copy of which is
attached hereto as Exhibit D, that would prohibit any future establishment of another Village
within the Town's borders.

Woodbury's obvious intent in seeking dissolution with such an

extraordinary condition is to prevent the establishment of a Village by Hasidic Jewish property

owners in the vicinity of Kiryas Joel.

22.

Petitioner Village of South Blooming Grove, which also borders Kiryas Joel, was

similarly created specifically to exclude the Kiryas Joel community from the Town of Blooming
Grove. As with Woodbury, the Village of South Blooming Grove was incorporated specifically

to prevent the Hasidic Jewish residents of the Town of Blooming Grove from forming their own

Village in the vicinity of Kiryas Joel. The Village of South Blooming Grove's incorporation was
a strategic discriminatory effort to erect a barrier to the settlement of families associated with the
Kiryas Joel community in the areas of the Town adjacent to Kiryas Joel.
B. Petitioners' Attempts to Prevent Kiryas Joel from
Securing a Sufficient Water Supply.

23.

In perhaps the most egregious example of Petitioners' efforts to interfere with

Kiryas Joel's attempts to provide even the most basic necessities to its residents, the Municipal

Petitioners have historically refused to share their municipal water supplies with Kiryas Joel,
while at the same time also actively interfering with Kiryas Joel's efforts to independently secure
a sufficient water supply source for its residents.

Copies of letters from the municipal

communities surrounding the Village, including many of the Municipal Petitioners herein,
denying Kiryas Joel's requests for access to community water sources are attached collectively
hereto as Exhibit E.
24.

These outright refusals compelled the Village to plan and construct a 13 -mile

pipeline to connect the Village's water supply to the New York City Aqueduct, as it is statutorily
entitled to do under section 24-360(a) of the Administrative Code of the City of New York and

the Village Law.

25.

As discussed below, even this effort was relentlessly opposed by these same

Municipal Petitioners.

On one hand the Municipal Petitioners refused to share water with the

Kiryas Joel community (thereby forcing Kiryas Joel to expend substantial resources in pursuing
alternative options such as the pipeline) and then, on the other hand, the Municipal Petitioners
opposed Kiryas Joel's efforts to acquire our own independent water source from New York City.
26.

Indeed, when Kiryas Joel first approved the pipeline project in 2004, the County

immediately commenced litigation challenging the project and accompanying SEQRA review.
See Matter of County of Orange v Village of Kiryas Joel. Sup Ct, Orange County, Rosenwasser,
J., Index No. 7547/2004 (hereinafter, the "First Pipeline Litigation"), affd as modified 44 AD3d
765 (2d Dept 2007).

27.

The County commenced a second proceeding challenging the project in 2009,

which also purported to challenge the adequacy of the Amended Final Environmental Impact
Statement ("AFEIS") prepared at the direction of the Second Department. See Matter of County

of Orange v Village of Kirvas Joel. Sup Ct, Orange County, Nicolai, J., Index No. 8513/09 (the
"Second Pipeline Litigation").
28.

The Second Pipeline Litigation was withdrawn as part of a global settlement with

the Sewer Capacity Litigation, described below, upon the consent of all parties, including the

County and Village of Woodbury.

29.

Notwithstanding the settlement of this litigation, Woodbury and the Village of

Harriman subsequently attempted to revive the settled litigation by moving to intervene as new

Petitioners after the settlement and dismissal of the litigation and, as described below, after this
Court lifted the injunction on sale of sewage capacity to non-sewer district communities
(including the Petitioners). This was a concerted, extraordinary effort to unravel the settlement
to which the Town and Village of Woodbury had just consented and a desperate attempt to
salvage their efforts to frustrate Kiryas Joel's connection to the New York City Aqueduct.
30.

Thankfully, however, this

Court rejected Woodbury's intervention motion,

holding that because the Town and Village of Woodbury acquiesced in the settlement and never

moved to intervene in the original proceedings until nearly seven months after their final
resolution, they could not thereafter revive the challenge to Kiryas Joel's connection to the New
York City Aqueduct.

A copy of Judge Nicolai' s decision rejecting Woodbury's intervention

motion is attached hereto as Exhibit F.

31.

Petitioners appealed this Court's determination, and the Appellate Division

dismissed Petitioners' appeal. See 201 1 NY Slip Op 68400(U) (2d Dept, Mar. 30, 201 1).
32.

Despite such efforts, construction of the pipeline finally commenced in the spring

of 2013, nine years after the Village initiated the project.

delays resulted in significantly higher costs for the project.

10

By this time, however, the incessant

33.

Only two weeks after construction started, despite Kiryas Joel having obtained all

necessary permits for construction, including permits from Orange County, the Orange County

Legislature passed a resolution, dated April 5, 2013, conditioning permission for Kiryas Joel to
alter or excavate certain Orange County rights of way along the pipeline route on obtaining

unrelated permits from other governmental entities, including NYSDEC and NYCDEP.
resolution also purportedly

directed the

County permitting

agency,

the

Orange

The

County

Department of Public Works (the "County DPW"), to stop all work by Kiryas Joel on the
pipeline in the County right of way. A copy of the County Legislature resolution, dated April 5,
2013, is attached as Exhibit G.
34.

In an express attempt to enforce the County Legislature's resolution, on or about

April 10, 2013, Roxanne Donnery, the former County legislator for Woodbury who sponsored

the resolution, and John Burke, the former Supervisor of the Town of Woodbury, physically
interfered with Kiryas Joel's construction of the pipeline.
35.

Ms. Donnery and Mr. Burke placed themselves and their cars in the way of

construction, and sat directly on the pipe that Kiryas Joel's contractors were attempting to install,

approximately forty feet from where Kiryas Joel's contractor was actually operating heavy
construction equipment. Kiryas Joel was, therefore, forced to halt construction because of safety

concerns caused by their direct interference.

36.

After Kiryas Joel was forced to commence litigation to restrain the unlawful

interference with the pipeline construction and to annul the County Legislature's resolution, the
County Legislature expressly conceded that it lacked any authority to impose conditions on
Kiryas Joel's valid County DPW highway work permit for the pipeline project.

11

37.

Undeterred, Woodbury and the Village of Harriman next used a wholly unrelated

Article 78 challenge to the Village's SEQRA review of the development of a water supply well
in the Town of Cornwall (the "Mountainville well") to once again bootstrap a meritless and

untimely attack on the pipeline project. Despite that Woodbury's original Petition, filed in April

2013, challenged the SEQRA review for the separate and distinct Mountainville well project,
while not asserting any affirmative claims against the pipeline whatsoever, Petitioners sought
extraordinary injunctive relief against the construction of the pipeline.
38.

Petitioners' attempts to revive their previous failed attempts to the stop the

pipeline via the totally unrelated Mountainville well SEQRA litigation is clearly revealing of

their true motivations - to launch yet another vexatious collateral attack on Kiryas Joel's growth
and ability to provide its residents with an adequate water supply.
39.

Supreme Court (Nicolai, J.) properly denied Woodbury's first attempt to secure a

preliminary injunction on that ground, importantly acknowledging that Kiryas Joel had "obtained
all local, county and State work permits required for the construction of [the] pipeline," and that

the

construction was

"otherwise

authorized by

Administrative Code" (emphasis supplied).

the

Village

Law

and New

York City

A copy of Judge Nicolai' s decision is attached

i

hereto as Exhibit H.

i
40.

Woodbury and Harriman subsequently amended their Article 78 petition to

belatedly raise new challenges to the Village's pipeline project, and moved for a second
preliminary injunction to stop construction.
41.

Supreme Court (Lefkowitz, J.) dismissed the proceeding in its entirety, once again

rejecting Petitioners'

attempt to interfere with the Village's statutory rights to continue

construction of the pipeline on the ground that the Village had not yet obtained a water supply

12

permit from the NYSDEC for the Mountainville Well or a connection to the New York City
Aqueduct from the NYCDEP for the pipeline.
42.

Specifically,

Supreme

Court reiterated Justice Nicolai's

determination that

Petitioners' claims concerning the proposed Mountainville well were not related, in any way, to
the Village's construction of the pipeline and further held that "the statutory language [of New
York City Administrative Code 24-360] mandates that approval be given [by NYCDEP] to
Kiryas Joel to tap into New York City's water supply." A copy of Judge Lefkowitz's decision is

attached hereto as Exhibit I.

43.

Supreme Court also held that Kiryas Joel was statutorily entitled to construct the

"water pipes under a public highway in Orange County, or any adjoining county, for the purpose

of supplying water to Kiryas Joel," and specifically without Petitioners' consent or the consent of
any other municipality.
44.

Incredibly, notwithstanding that Supreme Court twice rejected these attempts to

enjoin Kiryas Joel's lawful construction of this important public works project, Woodbury and
the Village of Harriman proceeded to seek a third injunction enjoining construction on the

pipeline pending an appeal from Judge Lefkowitz's decision.

The Appellate Division, Second

Department denied the motion, which was based upon the same meritless arguments for a
preliminary injunction that were soundly rejected twice by this Court. A copy of the Appellate
Division's Decision denying this motion is attached hereto as Exhibit J.
45.

Tellingly, Woodbury then declined to perfect its appeal, and the Appellate

Division ultimately dismissed the appeal. A copy of the Appellate Division's Decision
dismissing Woodbury's appeal for failure to perfect is attached hereto as Exhibit K.

13

46.

As a result of such incessant litigation, the Village has been forced to expend

significant resources and endure interminable delays defending the pipeline project.
47.

Over two years behind schedule, construction of the pipeline has now progressed

and Kiryas Joel has completed nearly 6 miles of the 13 -mile project.
48.

In yet another effort by Woodbury with similar undertones as the case at hand,

Woodbury enacted a local law intended to prevent the removal of groundwater, either directly or
after storage, for use outside of the Village of Woodbury.

This local law was precipitated by a

local developer's intent to sell water to a subdivision in the Town of Monroe that shared 90% of
its proposed borders with Kiryas Joel, and was thus a thinly-veiled attempt to prevent the
subdivision from providing additional housing for the Kiryas Joel community.

49.

The local law was quickly struck down by this Court. See Woodbury Heights

Estates Water Co.. Inc. v. Village of Woodbury. Sup Ct, Orange County, Ecker, J., Index No.
1211/2011.

As recognized in Judge Ecker' s decision, a copy of which is attached hereto as

Exhibit L, it was obvious that this enactment was intended to prevent the transport of water for
use by residents in Kiryas Joel and the expansion of the Kiryas Joel community.
50.

The Appellate Division, Second Department, affirmed Supreme Court's decision

invalidating the law. Woodbury Heights Estates Water Co. v Village of Woodbury. Ill AD3d

699 (2d Dept 2013). A copy of the Appellate Division's decision is attached hereto as Exhibit
M.

Notably, the Second Department also held that Woodbury has absolutely no authority to

regulate the withdrawal and allocation of groundwater resources, because the New York
Legislature has vested that authority exclusively in the NYSDEC under ECL Article 15. As the

Court noted, NYSDEC has a comprehensive permit process that considers the competing needs
for water of all affected municipalities. Indeed, New York courts have uniformly held that one

14

municipality, which may be more favorably situated concerning the availability of water
resources, cannot prevent another adjoining municipality from obtaining water, even where it
becomes necessary to pass through the territory of such adjoining municipality to reach the

source of supply.
51.

Following the annulment of Woodbury's local law, Kiryas Joel acquired a certain

private water company located in the Town of Woodbury.

Shortly thereafter, in a retaliatory

effort following the annulment of Woodbury's local law, the Village of Woodbury commenced
an eminent domain proceeding attempting to seize the property of the water company. The true

underlying goal of this eminent domain proceeding was to prevent Kiryas Joel from obtaining
access to a source of potable water for its residents.
52.

In fact, the Woodbury Village Board's preemptive resolution noticing a public

hearing for the Eminent Domain Procedure Law Article 2 proceeding and adopting a perfunctory
SEQRA negative declaration for the proposed condemnation expressly acknowledged that intent,
noting that Kiryas Joel was in the process of acquiring the water company, and baselessly
suggesting that Kiryas Joel does not have a need for the water. Copies of Woodbury's resolution

and negative declaration are collectively attached as Exhibit N.

53.

Kiryas Joel opposed the proceeding, and the Village of Woodbury ultimately

discontinued the eminent domain proceeding, thereby acknowledging the proceeding's lack of a
true public purpose.
54.

Most recently, on or about November 25, 2015, the Village and Town of

Woodbury, among others, brought yet another Article 78 petition seeking to annul NYSDEC's
water withdrawal permit for the Mountainville well and to restrain and enjoin the Village from

withdrawing water pursuant to the permit. See Matter of Village of Woodbury v Seggos, Sup Ct,

15

Albany County, Index No. 5580-15; Matter of Black Rock Forest Consortium v New York State

Dept. of Environmental Conservation. Sup Ct, Albany County, Index No. 5602-15 (collectively,
the "Well Permit Litigation").

The well permit authorizes the Village to withdraw a specified

amount of water from a well on property owned by the Village in the Town of Cornwall for the
purpose of providing necessary backup supply to the aqueduct connection and interim capacity

to the Village's public water supply system while completing construction of the pipeline.
NYSDEC issued the permit after due consideration of all statutorily-mandated criteria.
55.

The Well Permit Litigation involves many of the same parties that brought the

prior unsuccessful challenge to the SEQRA review for the Mountainville well noted above, and
in fact relies almost entirely on the same arguments that were dismissed by Judges Nicolai and

Leflcowitz in that litigation.

In short, it appears that Petitioners will continue to relentlessly

recycle the same meritless arguments in seeking to prevent Kiryas Joel from providing necessary
services to its residences and thereby stifle the Village's organic growth.

In all of these

proceedings, Petitioners ultimate goals have been undeniable: driving up costs for Kiryas Joel to

take necessary municipal actions and preventing the Kiryas Joel community from properly
functioning and growing in Orange County.
C.

Petitioners' Attempts to Prevent Kiryas Joel from

Securing Sufficient Sewage Treatment Capacity.

56.

In addition to their vexatious actions to interfere with Kiryas Joel's attempts to

secure sufficient water supply, Petitioners have actively sought to prevent Kiryas Joel from
obtaining necessary sewage treatment capacity for its residents.

57.

Kiryas Joel is located within Orange County Sewer District #1 ("OCSD #1"). As

District members, our resident property owners pay sewer assessments to the District and are
therefore entitled to sewer connections to their properties. During the 1970s, Orange County

16

constructed a new wastewater treatment plant ("WWTP") in the Village of Harriman to serve the
OCSD #1. At that time, the County took over and demolished a small sewage treatment plant
serving Kiryas Joel and connected Kiryas Joel directly to the Harriman WWTP.
58.

In 1978, the OCSD #1 entered into an intermunicipal agreement with the non-

District Towns of Woodbury, Monroe, Chester, Blooming Grove, and the Village of Chester, for
the joint treatment of wastewater for communities outside of the District. The agreement called
for the expansion of the Harriman WWTP to serve the additional service areas, and contained a
contractual provision requiring the construction of additional wastewater treatment capacity
when the expanded Harriman WWTP reached 85% of its capacity.

59.

When the initial expansion was completed in 1986, the Harriman WWTP already

exceeded its capacity. Despite the contractual provision requiring the construction of additional

capacity, the County did not construct any new capacity. This forced the NYSDEC to impose a
moratorium to prohibit further connections within OCSD #1.

As a result of this moratorium,

many properties in Kiryas Joel were denied connections even though they were part of the

District and had paid assessments for constructing the sewage treatment facilities and sewers.
The moratorium caused a severe housing crisis in Kiryas Joel.

60.

By contrast, the County allowed other properties already connected to the sewer

system to discharge unlimited quantities of wastewater into the system and permitted other
municipalities to continue connecting to the sewers.
61.

After nearly a decade of the moratorium, with no indication that the County was

ever going to resolve the issue, Kiryas Joel constructed its own 1 million gallon per day ("mgd")

sewage treatment plant and agreed to lease a significant portion of the treatment capacity to the

17

County for the benefit of all OCSD #1 members, which was instrumental in lifting the NYSDEC

moratorium. The County also initiated a further expansion of the Harriman WWTP by 2 mgd.
62.

In 2006, the County offered to sell more than 1.0 mgd of the OCSD #l's newly-

enhanced treatment capacity to municipalities located outside of the District without first
determining whether sufficient capacity existed to serve the primary needs of the current District
members, including the residents of Kiryas Joel.

In order to avoid a repeat of history and the

inevitable treatment capacity issues that this would create, Kiryas Joel was forced to challenge
the County's efforts to sell sewer capacity to non-District municipalities.
63.

Not surprisingly, a number of the current Municipal Petitioners, including

Woodbury and Blooming Grove, intervened in and opposed Kiryas Joel's challenge. See Matter
of Village of Kiryas Joel v County of Orange. Sup Ct, Orange County, Nicolai, J., Index Nos.

1892/07, 3958/07 (hereinafter, the "Sewer Capacity Litigation").

Supreme Court rejected the

interveners unsupported assertion that sufficient excess sewer capacity existed to serve the needs
of both District members and non-District municipalities, and imposed an injunction on the sale
of sewer capacity to these non-District municipalities (the "Sewer Capacity Injunction"), until
such time as the County demonstrated that adequate capacity existed to first serve the needs of

District members before offering to sell to communities outside the District, including the
Woodbury and Blooming Grove Petitioners.

A copy of this Court's order imposing the Sewer

Capacity Injunction is attached hereto as Exhibit O.

64.

Thereafter, as noted above, the County and Kiryas Joel, with the consent of

Woodbury, reached a global settlement agreement that resolved the Sewer Capacity Litigation

and the Second Pipeline Litigation. As part of the terms of the settlement, among others, and as
a pre-requisite to vacating the Sewer Capacity Injunction, the County was required to prepare an

18

AFEIS and findings statement concerning the adequacy of sewage treatment capacity serving
OCSD #1, as well an enforceable agreement between OCSD #1 and the County reaffirming the
County's obligation to plan for increased sewage treatment capacity at District facilities once
current treatment capacity nears exhaustion. Upon completing these requirements, the Sewer
Capacity Injunction was vacated, which enabled the non-District municipalities to acquire
additional sewage treatment capacity. Woodbury immediately availed itself of this opportunity.
65.

Notwithstanding the fact that Woodbury availed itself of the benefit of the

removal of the Sewer Capacity Injunction, it thereafter, together with the Village of Harriman,
commenced an Article 78 proceeding seeking to annul the County's AFEIS and the agreement
between OCSD #1 and the County to plan for increased sewage treatment capacity at District

facilities - the very actions that enabled the lifting of the injunction and acquisition of additional
sewage treatment capacity by Woodbury and the other non-District municipalities. See Matter of

Town of Woodbury v County of Orange. Sup Ct, Orange County, Nicolai, J., Index No. 6034/10
(hereinafter, the "County AFEIS Litigation").

Kiryas Joel was named as a respondent in that

proceeding along with the County.

66.

The irony and utter maliciousness of this action is breathtaking. To be clear, after

the Sewer Capacity Injunction was lifted and Woodbury secured its additional capacity, it sought
to unravel the very efforts to which it had consented in seeking to obtain vacatur of the
Injunction. This was yet another attempt to prevent the residents of Kiryas Joel from accessing
fundamental public services in an effort to stop any future growth of this community.
Petitioners' opposition to Kiryas Joel remains steadfast, apparently even when it requires them to

take such obviously inconsistent and disingenuous positions.

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D.

Petitioners'

Interference

with

the

NYSDEC

Determination and Unconstitutional Attempt to

Commissioner's

Lead

Agency

Secure Legislation Preventing

Kirvas Joel from Serving as Lead Agency for the Annexation Petitions.

67.

Petitioners' efforts were not limited solely to nuisance litigation.

68.

As set forth in my prior affirmation in these proceedings, on or about December

27, 2013, the owners of a majority in assessed valuation of certain real property in the Town

presented a petition for the annexation of 177 tax lots, encompassing approximately 507 acres,
from the Town to the Village pursuant to the provisions of GML 703(1) (the "507-acre
annexation").

69.

Upon receipt of the annexation petition, Kiryas Joel commenced the statutory

review process for the

507-acre annexation petition in accordance with the Municipal

Annexation Law and SEQRA.

70.

A dispute arose as to whether the Village, the Town of Monroe, the Monroe

Woodbury Central School District, Orange County, or the NYSDEC would act as lead agency
under SEQRA. That dispute was submitted to the Commissioner of the NYSDEC for resolution.
This lead agency dispute substantially delayed consideration of the 507-acre annexation petition
for nearly 12 months.

I
71.

Not surprisingly, a number of individuals and groups, including some of the

Petitioners herein, improperly injected themselves into the dispute to baselessly criticize Kiryas
Joel to NYSDEC, in an ill-fated attempt to disrupt the SEQRA and Municipal Annexation Law
process.

72.

Specifically, in a letter to NYSDEC dated April 4, 2014 (attached hereto as

Exhibit P), Petitioner United Monroe raised a number of specious issues questioning the
"Village's willingness and ability to undertake an open and transparent [SEQRA] process." For

20

example, United Monroe's comments rely on purported missteps in the Village's SEQRA review
of its public water supply pipeline to the New York City Aqueduct ten years earlier, all of which
were resolved to the extent necessary and repeatedly upheld by the courts; unsubstantiated

allegations concerning purported violations of SPDES permits and the Clean Water Act; and

alleged failures to respond to unrelated Freedom of Information Law ("FOIL") requests. See Ex.
P, at 2-3.

None of those allegations had any bearing on the NYSDEC Commissioner's

determination of the appropriate lead agency for the SEQRA review of the annexation petition,
and the misplaced attacks were properly disregarded by the NYSDEC Commissioner.
73.

The County similarly submitted a letter to the NYSDEC, attached hereto as

Exhibit Q, that also opposed the Village's legitimate attempt to act as lead agency, asserted

meritless criticisms of the Village, and demanded that NYSDEC amend its regulations to allow
the County to serve in this role.
74.

In

January

2015,

the

NYSDEC

Commissioner,

properly

applying

the

Department's regulatory criteria for resolving a SEQRA lead agency dispute, designated the
Village Board of Trustees to serve as SEQRA lead agency for the review of the 507-acre

annexation petition. A copy of the Commissioner's decision is attached hereto as Exhibit R.

75.

Apparently dissatisfied with the Commissioner's proper application of the

regulatory criteria and selection of the Village Board of Trustees to serve as lead agency, and
despite that a lead agency determination is only an interim step in the SEQRA process and thus,
as a matter of law, cannot be challenged until the SEQRA review is complete, the PHV

Petitioners thereafter commenced an article 78 proceeding seeking to annul the Commissioner's

lead agency determination. See Matter of Preserve Hudson Valley, Inc. v The New York State
Department of Environmental Conservation, Sup Ct, Orange County, Connolly, J., Index No.

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2015-001707 (hereinafter, the "Lead Agency Litigation").

moved to intervene in this proceeding.

Petitioner Village of Woodbury also

As with this proceeding, the PHY Petitioners

indisputably lacked standing to bring the Lead Agency Litigation, relying upon speculative
allegations of harm concerning the alleged environmental impacts that may result from potential
post-annexation development and not relating, in any way, to the NYSDEC Commissioner's

selection of the lead agency for the SEQRA review.

76.

The Village's motion to dismiss the Lead Agency Litigation is currently pending.

77.

In another attempt to impede the annexation process, Petitioners lobbied for State

legislation that would surreptitiously thwart the annexation. This targeted effort resulted in two

patently improper legislative proposals seeking to single out the Village's ongoing and
substantially completed annexation review for the improper purpose of trying to stop the
Village's natural population growth.
78.

First, Assembly Bill No. 7639/Senate Bill No. 5643 sought to amend GML 239-

m to require the referral of certain annexation petitions, including those in this case, to the county
planning agency.

This bill expressly violated Article IX, 1(d) of the New York State

Constitution, which specifically provides that "[t]he consent of the governing board of a county

shall be required only where a boundary of the county is affected."

The proposed legislation

attempted an end run around that constitutional prohibition by effectively delegating preliminary
approval authority for all municipal annexations, no matter the size or potential impact, to the
county planning agency.

The bill, which would "apply to any annexation petition for which a

hearing required by section 705 of the general municipal law has not been held as of May 30,

2015," was specifically intended to apply retroactively to the Village's ongoing review of the
annexation petitions (the Village had scheduled and publicly noticed its GML 705 hearing on

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the annexation petition for June 10, 2015), with the object of substantially delaying or thwarting

the Village's review.

79.

Second, Assembly Bill No. 7629/Senate Bill No. 5603 sought to amend the

broadly applicable general law defining the powers of the Commissioner of the NYSDEC (ECL
3-0301) for the limited purpose of forcing the Commissioner to consider allegations of
environmental noncompliance, unrelated to the duties of a SEQRA lead agency, in resolving lead
agency disputes.

Again, the true purpose of this bill was merely to single out the Village's

substantially completed municipal annexation review for the improper purpose of trying to stop
the Village's natural population growth.

In fact, the Assembly Sponsor of the legislation

admitted, in comments to the media, that the bill was specifically intended only to impose a
higher threshold for the proposed annexation to Kiryas Joel.
80.

Many of the Municipal Petitioners passed a resolution in support of the bills, a

copy of which is attached hereto as Exhibit S.

81.

Not surprisingly, in July 2015 Governor Cuomo vetoed the bills outright, finding

Assembly Bill No. 7639/Senate Bill No. 5643 to be patently unconstitutional, and finding that
I

Assembly Bill No. 7639/Senate Bill No. 5643 was overbroad, duplicative, and threatened to
penalize a municipality for environmental compliance problems far in the past and attributable
only to prior administrations. Copies of the Governor's Memoranda vetoing the bills are

collectively attached hereto as Exhibit T.

E.

PHV Petitioners' Improper Attempt to Thwart the Annexation

by Commencing a Competing Annexation Petition.

82.

This Court is also familiar with the recent attempt by Petitioners Preserve Hudson

Valley and John Allegro to pursue two counter-annexation petitions seeking to annex over 330
acres of land in the Town of Monroe, including nearly 108 acres of lands already included in the

23

pending annexation to Kiryas Joel, without the consent of these property owners. This effort was
a thinly-veiled attempt to misuse the Municipal Annexation Law, against the will of the affected
property owners, as part of the continued crusade to prevent the growth of the Kiryas Joel
community.
83.

Fortunately, this Court dismissed this effort. A copy of the Court's decision is

attached hereto as Exhibit U.

F.

Petitioners' Further Interference with the SEQRA

Review for the 164-Acre Annexation.

84.

Notwithstanding that the Village Board would have been justified in issuing a

negative declaration of environmental impact for the annexation actions, the Village Board
nevertheless voluntarily committed to prepare a Generic Environmental Impact Statement
("GEIS") for the actions that would generally assess potential environmental impacts of certain

hypothetical development scenarios post-annexation.

85.

The County then expended approximately $200,000 in public funds to produce a

report by CGR Inc. ("CGR") that was intended to criticize the proposed annexations and

influence the SEQRA review.

This resulting report (the "CGR Report") was released several

days after the Final GEIS, and in fact debunked many of Petitioners' criticisms of Kiryas Joel.
86.

On or about August 14, 2015, the Village Board issued a notice of completion of

the Final GEIS and filed, published, and distributed the Final GEIS in accordance with SEQRA.
87.

Shortly thereafter, in a desperate, last-ditch effort to thwart the annexation,

Petitioner John Allegro sent a disturbing email to a member of the Town Board, and posted a
threatening letter to the same Board member on the Facebook page of Petitioner United Monroe.
Both the email and the publically-posted letter threatened to "ostracize" and alienate the Board
member from his community if he voted in favor of the annexations, made numerous thinly-

24

veiled references to the Board member's children, and even went so far as to threaten "a social
death penalty - affecting the bad actor's loved ones much more than he himself hurts." These

blatant threats were a malicious and desperate attempt to intimidate the Town Board into voting
against the annexation petitions, and further demonstrate the animosity that Petitioners unjustly
direct at the Kiryas Joel community. Copies of the email and posted letter are collectively

attached hereto as Exhibit V.

Conclusion

88.

Unlike other communities, including the Municipal Petitioners herein, the Village

embraces growth and as a responsible municipal government, has taken significant progressive
steps to respond to the needs of its residents and accommodate such inevitable growth with
desired public services.

Through this annexation process, the Village has honored the

Constitutional rights of the private property owners and admirably and reasonably carried out its
own constitutionally and statutorily directed duties.
89.

Petitioners, however, have consistently challenged any and all municipal actions

taken by Kiryas Joel for years, and it is clear Petitioners only goal is to exclude the Kiryas Joel

community from Orange County at any cost. These current proceedings are yet another example
of this ruthless campaign. As with prior attacks, this Court should reject Petitioners' claims in
their entirety as wholly without merit.

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>

AXYE szegedin
village Administrator and Clerk
Village of Kiryas JoelSubscribed and affirmed to before me this

^ day of January, 20 1 6

loti

uhs

MOISHE GR.UBER
Notary Public - State of New York
NO. 01GR4840440

Qualified in Kings County

My Commission Expires Seo 30. ?017

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