STATE OF NEW YORK

SUPREME COURT ULSTER COUNTY

In the Matter of the Application of

CATSKILL HERITAGE ALLIANCE, INC. PETITION

Petitioner,

for a Judgment Pursuant to INDEX NO. ______

CPLR Article 78

-against- DATE OF FILING:

TOWN OF SHANDAKEN ZONING BOARD OF ___________

APPEALS, TOWN OF SHANDAKEN PLANNING
BOARD, and CROSSROADS VENTURES, LLC,

Respondents.

Petitioner, Catskill Heritage Alliance, Inc., for its verified

petition herein, alleges as follows:

SUMMARY OF PROCEEDING

1. This proceeding is brought pursuant to Article 78 of the

Civil Practice Law and Rules (CPLR) to annul, vacate, and set

aside the February 15, 2017 determination by respondent Town of

Shandaken Zoning Board of Appeals (hereinafter ZBA) that

certain structures proposed by respondent Crossroads Ventures,

LLC (hereinafter Applicant or Crossroads) are permitted by

the Town of Shandaken Zoning Code (hereinafter Zoning Code).1

1
The ZBAs determination was filed with the Town Clerk on
or about February 23, 2017

1
 2. This proceeding is also brought to annul, vacate, and

set aside the March 13, 2017 determination by respondent Town of

Shandaken Planning Board (Planning Board) approving the special

use permit and site plan review application by Crossroads

Ventures, LLC based upon the ZBAs February 15, 2017

determination.

3. Petitioner requests that the Court determine that

respondent Planning Board may not issue final approval of the

Applicants special use permit and site plan review application

unless use variances are first obtained for certain proposed

structures that are proposed in zoning districts where those

structures are not permitted by the Zoning Code.

4. The Applicant proposes to construct a development to be

known as the Belleayre Resort at Catskill Park in the towns of

Shandaken, Ulster County, and Middletown, Delaware County, in

close proximity to the state-owned and operated Belleayre

Mountain Ski Center (hereinafter the Project).

5. The Project spans more than 742 acres and multiple tax

map lots, and would consist of numerous distinct elements,

including, among other things, two hotels, an 18-hole golf

course, a golf clubhouse, ski trails, a ski lift, a parking

garage, swimming pools, numerous tennis courts, conference

centers and community centers, restaurants, shops, offices, and

259 detached residential dwelling units.

2
 6. Specifically, the Project would include the following

structures which are at issue herein:

! 11 detached habitational structures, known as the

Front 9 Village, in the eastern part of the Project,

which is referred to as Wildacres; and

! 4 detached habitational structures, part of the so-

called West Village, in the main part of Wildacres.

7. The 15 proposed detached residential structures at issue

herein are located in areas in the Town of Shandaken where the

Zoning Code prohibits such uses.

8. Petitioner, Catskill Heritage Alliance, Inc. (CHA),

commenced a CPLR Article 78 Petition (Index No. 16-0385) against

the Planning Board after it approved the site plan and special

use permit for the Project on January 13, 2016.

9. Petitioner CHA alleged that the Planning Boards

approval of Applicants special use permit and site plan

application should be annulled because the Applicant did not

apply for, and did not receive, use variances, which are required

as a matter of law, to construct certain prohibited uses (e.g.,

detached habitational structures) in the applicable zoning

districts.

10. Supreme Court (Mott, J.), among other things, ruled

that allowing the detached residential structures as part of the

project calls for an interpretation of the zoning code that is

beyond the [Planning] Boards authority because they do not fit

3
the definition of a hotel or motel and lodges are undefined.

Supreme Court Decision and Order dated October 6, 2016

(Decision), p. 8. A copy of the Decision is annexed hereto as

Exhibit A.

11. Supreme Court remitted the matter to the Planning

Board with the directive that it request that the ZBA determine

whether the proposed [habitational structures at issue] are

permitted under the [Zoning Code]. Supreme Court Decision and

Order dated October 6, 2016, p. 8. In its Decision and Order,

the Court referred to the proposed structures at issue, located

in the Front 9 Village and the West Village, as lodges or duplex

habitational structures. Supreme Court Decision and Order dated

October 6, 2016, pp. 3, 8. The Courts use of the terms lodges

and duplexes was puzzling because duplexes were not at issue,

and the term lodge is undefined in the Zoning Code. For the

purpose of clarity, the proposed structures at issue herein are

referred to as habitational structures hereinafter.

12. The Planning Board referred the matter to the Zoning

Board with instructions that the ZBA adopt a specified definition

of the term lodge, so that the proposed habitational structures

would qualify as lodges. A copy of the Planning Boards

letter dated November 14, 2016 is annexed hereto as Exhibit B.

13. The ZBAs decision then defined the term lodge in

the manner as proposed by the Planning Board. ZBA Decision

4
dated February 15, 2017 (ZBA Decision) p. 5. A copy of the ZBA

Decision is annexed hereto as Exhibit C.

14. The Petition seeks to annul the ZBA Decision, which

circumvented the Courts Decision, because the ZBA Decision is

arbitrary and capricious, an abuse of discretion, affected by a

violation of lawful procedure, and affected by error of law. The

Petition also seeks to annul the Planning Boards March 13, 2017

determination, based upon the ZBAs February 15, 2017

determination, because the Applicant did not apply for, and did

not receive, the required use variances. A copy of the Planning

Boards March 13, 2017 Resolution is annexed hereto as Exhibit D.

THE PARTIES

15. Petitioner CHA is a grassroots New York not-for-profit

corporation dedicated to preserving the harmony between people

and wilderness in the central Catskills.

16. CHA actively participated during the Planning Boards

review of the Project application. Notably, CHA also actively

participated during the Department of Environmental

Conservations environmental review of the Project, and was

granted full party status in DECs adjudicatory permit hearing

proceeding for the Project. CHA also actively participated in

the matter before the ZBA.

5
 17. One or more of CHAs members live in close proximity to

the site of the Project. The Project causes them environmental

harm that is different from the public at large.

18. Beverly Rainone is a member of CHA and lives on Galli

Curci Road, across the street from the Project.

19. Benjamin Korman and Idith Korman are also members of

CHA, who reside at the Galli-Curci Estate, located on Galli Curci

Road, across the street from the Project.

20. Other CHA members who live near the Project include:

Ruth Dunleavey, Matthew Frisch, Scott Gould, Susanna Margolis,

Denis Orloff, Amy Wax-Orloff, and Lee Parker.

21. CHAs members and their properties will be adversely

affected by the traffic, change in neighborhood character, and

other adverse environmental impacts of the Project.

22. Upon information and belief, respondent ZBA is a duly

constituted board of the Town of Shandaken, a municipality of the

State of New York, located in Ulster County. The ZBA issued a

determination that is challenged herein.

23. Upon information and belief, respondent Planning Board

is a duly constituted board of the Town of Shandaken, a

municipality of the State of New York, located in Ulster County.

The Planning Board granted the approval that was previously

challenged, and it made a subsequent determination on the Project

based upon the ZBAs determination. The Planning Boards

subsequent determination is challenged herein.

6
 24. The Applicant, respondent Crossroads Ventures, LLC, is

a New York limited liability company, with its principal office

located in Ulster County. It is the applicant for the special

use permit and site plan review approval which are at issue

herein.

VENUE

25. Venue of this proceeding properly lies in Ulster County

because the Town of Shandaken is located in said county, and the

site of the Project, which is the subject of this proceeding, is

mostly located therein. In addition, the Applicant has its

principal office in Ulster County.

BACKGROUND

The Project Site

26. According to the application materials and the Planning

Boards prior resolution approving the Project, the Project is

proposed to be built on a site of 333.56 acres in the Town of

Shandaken located south of New York State Route 28, and west and

north of County Route 49A, also known as Galli Curci Road

(hereinafter the portion of the Project located in the Town of

Shandaken will be referred to as the Site).2 Part of the Site

is also south and east of Galli Curcui Road, as the road winds

2
The Final Environmental Impact Statement for the Project
states that the lands in the Town of Shandaken includes
approximately 225 acres (p. 202) or 328.23 acres (p. 204). The
Planning Boards resolution (p. 2) states that the acreage is
333.56 acres.

7
and turns. Fleischmanns Heights Road is located to the west of

the Site.

27. According to the application materials, the Site

currently consists of 11 separate lots.

28. The Site is primarily undeveloped and is mostly

forested, with some open fields, ponds, and wetlands.

The Structures At Issue Herein Are

Not Permitted by the Zoning Code

29. In 2013, the Applicant filed with the Planning Board an

application for a special use permit and a site plan review

permit for the Project.

30. The Applicant applied for, and was granted, a single

special use permit for a hotel or motel or lodge development

under Zoning Code 116-40(O). See Applicants October 28, 2013

letter to the Planning Board (p. 3), Applicants Application

Addendum (p. 4), Planning Boards Notice of Public Hearing dated

December 30, 2014, and Planning Boards resolution (p. 5-6).3

31. A hotel is defined as a multiple dwelling or any

part thereof which contains living and sleeping accommodations

for transient occupancy, has a common exterior entrance or

3
According to those documents cited above, even though the
Project is called the Belleayre Resort at Catskill Park, the
Project has been reviewed by the Planning Board as a hotel
development, not a resort. There is no definition of a
vacation resort in the Zoning Code, and a camp, which is
similar to a resort according to the Zoning Code, specifically
excludes a hotel. Zoning Code 116-4. Moreover, neither the
Applicant nor the Planning Board applied the criteria in Zoning
Code 116-40(E) that apply to vacation colonies.

8
entrances and which may contain one or more dining rooms.

Zoning Code 116-4.

32. A hotel may also include uses integral to the hotel

that shall either be clearly accessory to the hotel . . . as

defined within 116-4, or be permitted uses or special permit

uses within the zoning district in which the hotel is proposed.

Zoning Code 116-40(O)(4).

33. The habitational structures at issue herein that are

proposed as part of the Project include:

! 11 habitational structures in Front 9 Village,

located in the R1.5 Residential zoning district; and

! 4 habitational structures in West Village, located

in the R3 Residential zoning district.

34. The habitational structures at issue herein cannot be

accessory to the hotel because accessory structures cannot be

used for the purpose of human habitation. Zoning Code 116-4

(definition of accessory).

35. Therefore, to be allowed as part of the Project, the

Projects habitational structures at issue herein must be uses

integral to the hotel and be permitted uses or special permit

uses within the zoning district where the structures are

proposed in order to be permitted as part of the Project. Zoning

Code 116-40(O)(4).

36. The Zoning Code specifies the types of uses that are

allowed in each of the Towns zoning districts. A use variance

9
is needed if a proposed use is not on the list of uses allowed in

a particular zoning district. Zoning Code 116-10.

The ZBA Ignored the Courts Direction and

the Clear Language of the Zoning Code

37. The Court noted that the habitational structures did

not meet the definition of a hotel or motel and lodges are

undefined. Supreme Court Decision and Order p. 8. The Court

directed the Planning Board to request that the ZBA determine

whether the proposed [habitational structures at issue] are

permitted under the [Zoning Code]. Decision and Order dated

October 6, 2016, p. 8. The Court did not direct the Planning

Board or the ZBA to determine whether the habitational structures

met any other particular definition or use in the Zoning Code

(e.g., multifamily dwelling, condominium, or lodge).

38. Upon remittal, the Planning Board instructed the ZBA in

a letter dated November 14, 2016, to adopt [its] or a similar

definition of lodge, so that the habitational structures will

qualify as lodges and thus [be] allowed under Zoning Code

116-40(O) in the zoning districts where proposed.

39. The Planning Board, not coincidentally, claimed in its

letter to the ZBA that the Projects habitational structures at

issue herein are detached buildings containing multiple units,

each with multiple rooms to accommodate larger groups and

families for somewhat longer transient stays. The Planning

Board in its letter to the ZBA also claimed that the units will

10
occupy the same lot as the main hotel building whose operator

will also manage these units and will not be subdivided or sold

as individual residences.

40. On this basis, the Planning Board proposed a definition

of lodge as follows: Lodge: A detached building containing

one or more units of living and sleeping accommodations for

transient occupancy in connection with a hotel or lodge

development and/or vacation resort, with all units under common

management. When developed in connection with a main hotel,

lodge units may be considered hotel units.

41. It is not the role of the Planning Board or the ZBA to

propose changes to the Zoning Code. The legislative function is

the responsibility of the Town Board. If this type of amendment

to the Zoning Code had been adopted by the Town Board, it would

have been considered spot zoning for the benefit of a single

landowner.

42. Overreaching even more into the legislative territory

of the Town Board, the Planning Board proposed that the ZBA adopt

a definition for transient occupancy that would require that

the occupants of these units have another place of residence or

abode.

43. The ZBA arbitrarily decided that the question before it

was whether the term lodge is included in the phrase hotel,

motel or lodge development. Of course, when phrased in this

11
manner, the ZBA found that a lodge development necessarily

includes lodges. ZBA Decision, p. 3.

44. Next, the ZBA, ignoring the Courts direction to

determine whether the proposed habitational structures were

permitted, carried out the Planning Boards request for it to

adopt new definitions for the terms lodge and transient

occupancy. Planning Board letter to the ZBA, p. 4; see ZBA

Decision ZBA Decision, pp. 3-4; Petition 37-39, 41, supra.

45. The ZBA found that the term lodge as used in the

Code should be interpreted in the manner as proposed by the

Planning Board, i.e., as including detached buildings (including

for example, duplexes and Front 9 buildings) containing one or

more units of lodging and sleeping accommodations for transient

occupancy in connection with the special permitted use of hotel

or lodge development and/or vacation resort held under common

ownership (ZBA Decision p. 5).

46. The ZBA did not make any explicit finding on the

question on which the Court requested an interpretation by the

ZBA.

47. The ZBA also did not make a finding about whether the

Projects habitational structures at issue herein are uses

integral to the hotel pursuant to Zoning Code 116-40(O)(4).

48. Crossroads application to the Planning Board states

that the detached lodging units, marketed as fractional share

and time-share units will come on line over the following five

12
years as the market dictates via pre-sales. The fact that the

hotels and golf courses will be constructed first, and the

habitational structures later, if at all, demonstrates that the

habitational structures are not integral to the Project.

49. If the ZBA can completely ignore the Zoning Codes

requirement that the uses be integral to the hotel development,

then it would mean that any uses (including industrial uses, or

entirely separate primary uses) that an applicant deemed to be

associated with its project could be included as part of a hotel

development, regardless of Zoning Code 116-40(O)(4) and the

zoning district/regulations applicable to that particular use.

Notably, a hotel develop is permitted (by special use permit) in

all of the Towns zoning districts (except the Floodway

District), while a multiple dwelling structure is permitted only

in half of the Towns zoning districts. Allowing the ZBAs logic

on this issue to stand would eviscerate the Zoning Code, and it

should be rejected.

50. The ZBA also ignored the Zoning Codes existing

definitions for the terms multiple dwelling and condominium.

Zoning Code 116-4.

51. The term multiple dwelling means a detached,

semidetached or attached building, or portion thereof, containing

three or more dwelling units. Zoning Code 116-4.

13
 52. The term condominium means individual ownership of a

dwelling unit within a multiple dwelling exclusive of the land

underlying such structure.

53. While the fee ownership will remain with the operator

of the hotels, the ZBA acknowledged that [s]ome of the lodge

units are intended to be sold to third parties. ZBA Decision p.

2. Therefore, the individual units within the habitational

structures meet the definition of condominium.

54. The 11 structures in the Front 9 Village and the four

structures in the West Village are multiple dwellings because

they each have buildings containing approximately eight or nine

dwelling units or condominiums.

55. Multiple dwelling structures are only permitted to be

constructed in the R1.5 zoning district if such dwellings are

built via conversion of existing structures. Zoning Code

116-10, District Schedule of Use Regulations (hereinafter Use

Table); and Zoning Code 116-40(A)(1).

56. The Front 9 Village structures would be new buildings

and would not result from the conversion of existing

structures. Zoning Code 116-40(A)(1).

57. Thus, in order to construct the multiple dwellings in

Front 9 Village, which is located in the R1.5 zoning district, a

use variance is required. Zoning Code 116-10(B).

58. Multiple dwellings are not permitted to be built in the

R3 zoning district. Zoning Code 116-10, Use Table.

14
 59. Thus, in order to construct the multiple dwellings in

West Village, which is located in the R3 zoning district, a use

variance is required. Zoning Code 116-10(B).

60. The Applicant has not applied for a use variance for

the habitational structures that it has proposed to build in the

R1.5 and R3 zoning districts.

61. Since they are not permitted uses, as shown above, the

habitational structures are prohibited.

AS AND FOR A FIRST SEPARATE

AND DISTINCT CAUSE OF ACTION
AGAINST RESPONDENT ZBA

62. Each and every allegation set forth above is repeated

and realleged as if more fully set forth herein.

63. The ZBAs determination should be annulled because it

failed to answer the question that the Court directed to it. See

Petition 36-46, supra.

64. Instead of applying the facts to the existing Zoning

Code, the ZBA used the Planning Boards claims about the

Projects habitational structures to craft new definitions that

the Projects habitational structures were certain to meet. See

Petition 37-44, supra.

65. The ZBAs determination was arbitrary and capricious,

an abuse of discretion, in violation of lawful procedure, and

15
affected by error of law because the ZBA failed to follow the

Courts direction.

AS AND FOR A SECOND SEPARATE

AND DISTINCT CAUSE OF ACTION
AGAINST RESPONDENT ZBA

66. Each and every allegation set forth above is repeated

and realleged as if more fully set forth herein.

67. The ZBA adopted new definitions for the terms lodge

and transient occupancy. See Petition 37-44, supra.

68. Adopting two new Zoning Code definitions exceeded the

ZBAs jurisdiction, and invaded the province of the Town Board to

adopt new definitions through a comprehensive planning process.

69. The ZBA may only apply the existing zoning laws to the

Project and its proposed habitational structures.

70. The changes adopted by the ZBA could set significant

precedent for other hotel, motel, or lodge developments.

71. Accordingly, the ZBAs determination was arbitrary and

capricious, an abuse of discretion, in violation of lawful

procedure, and affected by error of law.

AS AND FOR A THIRD SEPARATE

AND DISTINCT CAUSE OF ACTION
AGAINST RESPONDENT ZBA

72. Each and every allegation set forth above is repeated

and realleged as if more fully set forth herein.

16
 73. The ZBAs determination was arbitrary and capricious,

an abuse of discretion, in violation of lawful procedure, and

affected by error of law because the ZBA failed to follow the

existing Zoning Code.

74. The ZBAs decision renders meaningless the Zoning

Codes requirement for the uses to be integral to the hotel

development. See Petition 46-48, supra.

75. The ZBAs decision also renders meaningless the Zoning

Codes existing terms for multiple dwelling and condominium. See

Petition 49-60, supra.

76. The ZBA claimed that the habitational structures were

excluded from the term multiple dwellings because the term

dwelling unit excludes accommodations for what would be

referred to as transient occupancy rather than a permanent

occupancy (perhaps with the exception of a nursing home). ZBA

Decision p. 4. In other words, the ZBA claimed that a dwelling

unit necessarily excluded all structures with potential

transient occupancy, such as the proposed habitational

structures.

77. However, the first exclusion to the term dwelling

unit, as defined in the Shandaken Zoning Code, is a

boardinghouse that is defined as a private dwelling in which

no transients are accommodated. Zoning Code 116-4.

17
 78. Therefore, the duration or nature of occupancy as

transient or permanent is not determinative of the exclusions to

the term dwelling unit.

79. Moreover, the duration or nature of occupancy is not

included within the definition of dwelling unit.

80. Therefore, the ZBAs finding the proposed habitational

structures are not multiple dwellings as defined by the Code as

the exclusions listed apply to transient occupancy was arbitrary

and capricious.

81. Additionally, once sold, neither the ZBA nor the

Applicant will have control over whether third parties use the

units as their primary place of residence or use them as

transient occupancy.

82. The ZBAs requirement that users of the lodge units

have another place of residence or abode, so that the lodge units

will not serve as a primary residence was arbitrary and

capricious.

83. Adding this requirement also exceeded the ZBAs

jurisdiction by creating a new definition for the term transient

occupancy. See Second Cause of Action, supra.

84. In conclusion, the ZBAs reasoning about why the

habitational structures are not multiple dwellings due to the

potential for transient occupancy was arbitrary and capricious.

18
 85. Further, the ZBAs decision does not take into

consideration the other relevant terms of the Zoning Code. The

ZBAs decision acknowledges that a lodge development is part of

the phrase hotel, motel or lodge development, and that the term

lodge clearly includes terms that are defined in the Code such

as motel and hotel. ZBA Decision pp. 3, 5.

86. Together, these facts lead to the conclusion that the

Zoning Codes use of the term lodge in this context was meant

to include other nomenclature for a hotel or motel, and was

not meant to include an entirely different type of use, such as

the habitational structures at issue herein. See Zoning Code

116-40 (grouping particular special permit uses together for

purposes of applying specific standards to those groups).

87. The Court already determined that the habitational

structures do not fit the definition of a hotel or motel.

Supreme Court Decision and Order p. 8. Therefore, for the ZBA to

find that the habitational structures are nevertheless permitted

as lodges, under the hotel, motel or lodge development use

category, is arbitrary and capricious, and contrary to the

Courts decision.

88. The ZBAs determination was arbitrary and capricious,

an abuse of discretion, made in violation of lawful procedure,

and affected by error of law because the ZBA failed to follow the

Courts direction and the existing Zoning Code.

19
 89. Accordingly, the ZBAs determination should be

annulled.

AS AND FOR A FOURTH SEPARATE

AND DISTINCT CAUSE OF ACTION
AGAINST RESPONDENT ZBA

90. Each and every allegation set forth above is repeated

and realleged as if more fully set forth herein.

91. The ZBAs determination should be annulled because the

ZBA violated the Open Meetings Law. See Public Officers Law

Article 7.

92. The ZBA did not discuss the substance of its

determination in public.

93. Ostensibly, the ZBA met several times regarding this

matter, including one meeting on December 21, 2016 at which a

public hearing was held.

94. However, the ZBA members never conducted a discussion

of the matter in public, and, upon information and belief, only

discussed the matter in a closed session with their attorney

(also the Planning Boards attorney) on January 4, 2017.

95. At the February 15, 2017 meeting, when the

determination was adopted by the ZBA, there was no discussion,

and not a single comment was made by any of the ZBA members,

about the substance of the six-page resolution that was prepared

in advance, and was ultimately adopted. See ZBA Decision.

20
 96. Therefore, the ZBAs determination must be annulled as

arbitrary and capricious, an abuse of discretion, in violation of

lawful procedure, and affected by error of law.

AS AND FOR A FIFTH SEPARATE

AND DISTINCT CAUSE OF ACTION
AGAINST RESPONDENT ZBA

97. Each and every allegation set forth above is repeated

and realleged as if more fully set forth herein.

98. The ZBAs determination should be annulled because the

ZBA Chairman admitted working for the Applicant, yet he refused

to recuse himself from the matter.

99. As raised by Petitioner CHA to the ZBA, the Chairman of

the ZBA worked for the Applicant cutting timber on its lands, and

plowing the driveway of the Applicants office location, using

municipally owned equipment, while he was serving as the Towns

Highway Superintendent.

100. This financial and/or business relationship between

the Applicant and the Chairman presented a conflict of interest

requiring the Chairman to recuse himself from this matter. In

the alternative, even if it was not a conflict, it presented at

least the appearance of a conflict and the appearance of

impropriety. Petitioner CHA requested that the Chairman recuse

himself from the matter.

101. Nevertheless, the Chairman refused to recuse himself.

21
 102. The public deserves to be assured, and be confident,

that the members of public bodies, like the ZBA, are making

decisions without any appearance of impropriety.

103. The ZBAs decision should be annulled because the

public can not be confident that a conflict of interest did not

infiltrate the Chairmans decision-making in this matter.

AS AND FOR A SIXTH SEPARATE

AND DISTINCT CAUSE OF ACTION
AGAINST RESPONDENT PLANNING BOARD

104. Each and every allegation set forth above is repeated

and realleged as if more fully set forth herein.

105. The Planning Board may not approve a special use

permit application or a site plan review application unless it

complies with all of the requirements of the Zoning Code. Zoning

Code 116-10, Zoning Code 116-39.

106. As set forth above, the Zoning Code prohibits

multifamily dwellings in the R1.5 and R3 zoning districts.

Zoning Code 116-10, Use Table; and Zoning Code 40(A)(1).

107. However, the Applicant proposes to construct 11

multiple-family dwelling structures in Front 9 Village, located

in the R1.5 zoning district, and four multiple-family dwelling

structures in West Village, located in the R3 zoning district.

108. The requisite use variances have not been applied for

or approved by the ZBA.

22
 109. Therefore, the Planning Board may not issue final

approval of the Applicants special use permit and site plan

review application unless use variances are first obtained for

certain proposed structures that are proposed in zoning districts

where those structures are not permitted by the Zoning Code.

110. Therefore, the Planning Boards March 13, 2017

approval of the Projects structures at issue herein should be

annulled as arbitrary and capricious, an abuse of discretion, in

violation of lawful procedure, and affected by error of law.

AS AND FOR A SEVENTH SEPARATE

AND DISTINCT CAUSE OF ACTION
AGAINST RESPONDENT PLANNING BOARD

111. Each and every allegation set forth above is repeated

and realleged as if more fully set forth herein.

112. The Planning Board may not approve a special use

permit application or a site plan review application unless it

complies with all of the requirements of the Zoning Code. Zoning

Code 116-10, Zoning Code 116-39.

113. Zoning Code 116-40 requires that all uses, beyond

simply the hotel itself, must be integral to the hotel or motel

development and shall either be clearly accessory to the hotel,

motel or lodge development . . . or be permitted uses or special

permit uses.

114. The Planning Board purported to find that the Project

met that requirement by stating that all uses integral to the

23
hotel and lodge development are either clearly accessory to the

hotel or lodge development or are permitted and/or special permit

uses. Planning Boards March 13, 2017 Resolution, p. 6.

115. However, the Planning Board did not make a finding

about which of the Projects proposed additional uses, if any,

were actually uses integral to the proposed hotels.

Specifically, the Planning Board did not make a finding that the

proposed habitational structures were uses integral to the

hotels.

116. Moreover, the Planning Boards March 13, 2017

Resolution (p. 6) purports to have approved of two separate

development projects - a hotel development and a lodge

development - when there was only one application for a single

special use permit for a hotel or motel or lodge development

under Zoning Code 116-40(O). See Applicants October 28, 2013

letter to the Planning Board (p. 3), Applicants Application

Addendum (p. 4).

117. Therefore, the Planning Boards March 13, 2017

approval of the Projects structures at issue herein should be

annulled as arbitrary and capricious, an abuse of discretion, in

violation of lawful procedure, and affected by error of law.

24
 WHEREFORE, Petitioner requests that the Court grant judgment

pursuant to CPLR Article 78:

A. Annulling, vacating, and setting aside the February 15,

2017 determination by respondent Town of Shandaken Zoning Board

of Appeals that the habitational structures proposed by

respondent Crossroads Ventures, LLC are permitted by the Town of

Shandaken Zoning Code;

B. Annulling, vacating, and setting aside the March 13,

2017 determination by respondent Town of Shandaken Planning Board

approving the special use permit and site plan review application

by Crossroads Ventures, LLC;

C. Declaring that respondent Town of Shandaken Planning

Board may not approve the special use permit and site plan review

application by Crossroads Ventures, LLC unless a use variance is

first obtained for the construction of habitational structures in

the applicable zoning districts;

D. Awarding the Petitioner the costs and disbursements of

this proceeding; and

E. Granting such other and further relief as may be deemed

just and proper by the Court.

Dated: March 23, 2017

BRAYMER LAW, PLLC
Co-counsel for Petitioner
Claudia K. Braymer, Esq.
PO Box 2369
Glens Falls, New York 12801
518-882-3252

25
CAFFRY & FLOWER
Co-counsel for Petitioner
John W. Caffry, of Counsel
100 Bay Street
Glens Falls, New York 12801
518-792-1582

26
STATE OF NEW YORK)
)SS.:
COUNTY OF WARREN )

I, the undersigned, am an attorney admitted to practice in

the courts of New York State. I am an attorney for the
petitioner herein. I have read the foregoing petition and know
the contents thereof and the same are true to my knowledge,
except those matters therein stated to be alleged on information
and belief, and to those matters I believe them to be true. My
belief, as to those matters therein not stated upon knowledge is
based upon my review of documents maintained at my office,
correspondence and other writings furnished to me by the
petitioner and interviews with petitioner. The reason I make
this verification instead of the petitioner, is that the
petitioners principal place of business is outside of the county
wherein I maintain an office for the practice of law.

___________________________
Claudia K. Braymer

Sworn to before me this

____ day of March, 2017.

_______________________
NOTARY PUBLIC

S:\Client.Files\Catskill Heritage Alliance.Town.3463\Pleadings\Petition.ZBA.wpd

27