Housing Project Goes
Back to Drawing Board

Changes in disturbed acreage,
litigation stall project plans

By CASPAR EWIG
COOPERSTOWN
Further development of the proposed Bassett Hospital Averill Road housing project, for which the Cooperstown Board of Trustees had issued a special permit on January 5, has been stalled due to litigation instituted by adjacent property owners.

On January 18, 2023, Michael Swatling and Carolyn O’Brien filed a petition in the Madison County Supreme Court in which they alleged that the Cooperstown Board of Trustees applied an incorrect standard when analyzing the project’s environmental impact in light of the New York State Environmental Quality Review Act. In their complaint, the plaintiffs alleged that the project should have been classified as a “Type 1 Action” since it is being constructed in the Glimmerglass Historic District. Instead, the village evaluated the project and issued its special permit as an “Unlisted Action,” and this improper designation requires that the special permit be annulled, the petition contends.

One of the factors determining whether a project is a Type 1 or an Unlisted Action is the acreage that will be disturbed during the construction phase of the project. When a project such as the present construction of multiple housing falls in a district with an historical designation and expects to disturb or substantially alter more than 2.5 acres, then it is defined as a Type 1 Action.

When the Templeton Foundation originally presented its project to the village, it was represented to only physically alter 1.37 acres.

“Upon further review by the contractor of the project, the plan which the village approved exceeded the 2.5-acre threshold,” Martin Tillapaugh, attorney for the Village of Cooperstown, explained, “and there was no point in continuing the litigation. Thus, I—as counsel for the village—and the counsel for Templeton and the plaintiffs, stipulated that the litigation would be discontinued, but with the full right of Templeton to reapply.”

This provision, and the rights of the plaintiffs to appear and comment as citizens in any future public hearing, was memorialized in a Stipulation of Discontinuance filed by all parties on January 30, 2023.

The discrepancy between the plan as originally presented in November 2022 and the plan as ultimately considered by the Board of Trustees arose from modifications and improvements which were made during the review process.

Members of the Zoning and Planning boards, as well as individual trustees, made comments and suggestions which resulted in some major adjustments to the project. A new water tower—and destruction of an old water tower—was added, as were necessary access roads, and a change to the internal road design was required so as to avoid having buses back out of a cul de sac.

“Unfortunately,” Martin Tillapaugh added, “Temp-leton noted the changes on its architectural drawings but never amended the description of the acreage that would be altered by reason of these additions and modifications.”

The village attorney also advised that, according to information conveyed to him, Templeton has hired several additional engineers and is in the process of drafting a new application, although no timeframe was provided.

Attempts were made to obtain a statement from representatives of the Templeton Foundation to confirm this information, but their counsel stated that they were not prepared to discuss matters in pending litigation.

The designation of type of action through SEQR is not without its consequences. An application subject to a Type 1 Action is subject to a more rigorous and far-ranging analysis of potential environmental impacts as identified in SEQR than an Unlisted Action. Under an Unlisted Action designation, the Board of Trustees could issue a conditioned negative declaration and permit the project to proceed as long it required mitigation efforts to modify such adverse impacts.

However, in a Type 1 analysis, the Board’s negative declaration cannot be conditioned on a mitigation, but must rather result in a positive determination that any adverse impact has been reduced to a nonsignificant issue. It could also result in requiring the applicant to issue an Environmental Impact Statement that would then be subject to additional public hearings.

“The board was not unmindful of its obligation to investigate environmental issues,” said Mayor Ellen Tillapaugh. “In fact, we conditioned issuance of the special permit upon seven conditions, three of which were specifically directed to mitigation of impacts addressed in SEQR.

The other four conditions addressed issues the board identified when reviewing the 16 criteria to be considered for a special permit. At this point, the applicant can revise their application if they choose to do so and resubmit.”

Attempts to obtain reactions or comments from the plaintiffs or their counsel were met with declinations similar to that of the Templeton Foundation’s refusal to make statements in light of pending litigation.