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Defense seeks dismissal of Woodstock Commons lawsuit

by George Pattison
September 22, 2010 10:30 PM | 0 0 comments | 12 12 recommendations | email to a friend | print
RUPCO stake in the ground.
RUPCO stake in the ground.
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A citizen’s lawsuit challenging the Planning Board’s environmental approval of the Woodstock Commons affordable housing project may have been thwarted, at least temporarily, by a maneuver executed by the attorney for the defendants in the action: the planning agency and its chairman, Paul Shultis Jr., and the Town Board, as represented by Woodstock supervisor Jeff Moran.

The attorney, Drayton Grant, last week filed a motion to dismiss the lawsuit, known as an Article 78 petition, brought by Woodstock resident Robin Segal. Grant’s motion cites a technical flaw in the petition as grounds for dismissal. Meanwhile, Segal’s ability to correct the flaw by amending her petition may be impaired if, as Grant’s motion claims, a 30-day statute of limitations for such an action expired on September 10.

Grant, a partner in the law firm Grant & Lyons, LLP, with offices in Rhinebeck and Manhattan, represents the town of Woodstock in matters related to land use. In a recent interview she described herself as a pioneer in environmental law and an experienced practitioner of Article 78 cases. Segal, an expert in energy policy but not a lawyer, is representing herself in the current proceeding.

In Segal’s version of events, Grant conceived and enacted a plan to defeat the lawsuit by requesting, and receiving, Segal’s consent to delay the proceedings while, unbeknownst to Segal, the clock had begun to tick on the statute of limitations. Grant was asked in a September 21 interview if she had indeed engaged in such a ploy. “I have never seen somebody not take advantage of a condition in the law that lets a case be ended, which otherwise would go against them,” she said.

In interviews on September 20 and 21, Segal said that she planned to protest Grant’s action, while seeking a revised timetable for the statute of limitations, in an upcoming letter to all of the parties in the matter, including state Supreme Court justice James Gilpatric, who is presiding in the case.

According to the motion for dismissal, Segal’s petition was flawed because it failed to name as defendants, or respondents, two additional parties: the housing project’s developer, the Rural Ulster Preservation Company (RUPCO); and the owner of the property envisioned as the project’s site, EVK Realty. The motion maintains that RUPCO and EVK Realty should be legally “joined” to the action because they might be “inequitably affected” by a judgment against the other respondents.

Segal filed her petition in state Supreme Court in Kingston on July 28. The petition cites 22 causes of action against the defendants, including the Planning Board’s failure to obtain a credible assessment of traffic safety at the intersection of Route 212 and Playhouse Lane, near the proposed entrance to the 53-unit affordable housing development.

The defendants were required to respond to the petition by a “return date” of September 1 (or possibly earlier, according to Segal). On August 17, both parties agree, Grant called Segal to request a three-week extension of the response period, to September 24, citing two reasons: her clients’ need for additional time to prepare the record for the case — a task that included the Planning Board’s belated adoption of the minutes from several previous meetings — and Grant’s own plans for an upcoming vacation. Segal acceded to the request. Grant notified the Ulster County court clerk of the agreed-upon schedule change in an August 18 letter.

According to Segal, the Planning Board’s preparation of the record for the case involved its perfunctory adoption of minutes from prior meetings at the beginning of more recent meetings. As evidence that the board’s actions were perfunctory, Segal maintained that the agendas for recent meetings scheduled votes on the adoption of minutes simultaneously with other business before the board. Segal also charged that Planning Board members who had not attended certain meetings were nevertheless assigned the task of reviewing the minutes of those sessions.

Boxed in

The 30-day statute of limitations relating to matters including the amendment of petitions is found in a provision of New York State Town Law. In the current instance, according to the motion for dismissal, the 30-day period began on August 10, following the Planning Board’s approval of the Woodstock Commons site plan and special use permit application on August 5. A month earlier, on July 1, the planners had unanimously adopted a “findings statement” clearing the project on environmental grounds.

In recent interviews and in remarks to the Town Board at its September 21 meeting, Segal said that she could have readily amended her petition as required if she had known that a statute of limitations period had been activated. Meanwhile, she received Grant’s motion for dismissal on September 14 — four days after the 30-day period had expired, according to the motion.

The motion to dismiss maintains that Segal is still free, at least technically, to amend her petition by adding RUPCO and EVK Realty as defendants or respondents, despite the expiration of the 30-day period. Paradoxically, however, the motion further notes that if Segal were to do so, RUPCO and EVK Realty would likely seek to have the case against them dismissed — on the grounds that the statute of limitations had expired. In a September 21 interview, Grant agreed that amending a petition under those circumstances seemed pointless.

Grant was asked whether she had been in contact with RUPCO or EVK Realty, since her motion to dismiss speculated that those parties could invoke the statute of limitations in their defense. “I have spoken through the course of things with Michael Moriello about various things,” she said, referring to RUPCO’s attorney. Grant added that she did not even know the names of the principals of EVK Realty.

In her September 21 remarks to the Town Board, Segal suggested that Grant, the town’s legal advocate, had taken advantage of her attempt to be accommodating by agreeing to the request for an extension. “If that’s the way you want to run this town,” she told council members, “somebody is going to die at the intersection of Route 212 and Playhouse Lane, and it’s going to be on you.” ++

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