SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Index No, BOARD OF EDUCATION OF THE BRENTWOOD UNION FREE SCHOOL DISTRICT, ROBERT FELICIANO in his official capacity as President of the Board of Education of the Brentwood Union Free School District, VERE 4 TOWNS CIVIC ASSOCIATION, INC, and JOSEPH FRITZ, ESQ COMPLAINT/PETITION Plaintifis-Petitioners, -against- TOWN BOARD OF THE TOWN OF ISLIP, 22-50 JACKSON AVENUE ASSOCIATES, L.P., and PILGRIM EAST, L.P. Defendants-Respondents. Plaimtiffs-petitioners, BOARD OF EDUCATION OF THE BRENTWOOD UNION FREE SCHOOL DISTRICT (the "School District") and ROBERT FELICIANO, in his official capacity as President of the Board of Education of the School District ("Feliciano"), by their attorneys, BOND, SCHOENECK & KING, PLLC, together with 4 TOWNS CIVIC ASSOCIATION, INC. (the ¢ Association”) and JOSEPH FRITZ, ESQ. (“Fritz”), complaining of defendants-respondents, TOWN BOARD OF THE TOWN OF ISLIP (the "Town") and 22-50 JACKSON AVENUE ASSOCIATES, LP. ("Associates"), allege as follows: 1. By this hybrid declaratory judgment action and Article 78 proceeding, the School District, Feliciano, the Civie Association and Fritz, hereafter referred to collectively as “Petitioners”, seek judgment declaring invalid and annulling the Resolution adopted by the Town and filed in the Office of the Town Clerk on July 18, 2017 (the “July 2017 Resolution"), by which the Town, upon the application of Associates, (a) amended Chapter 68 of the TownCode, including the Town Zoning Map, to establish the Pilgrim State Planned Redevelopment District ("PSPRD"), (b) granted to Associates a change of zone from Residential AAA to PSPRD with respect to 113 acres ofits land constituting Phase 1 of Associates’ proposed plan for the redevelopment of its 452 acre parcel located entirely within the confines of the School District at the former Pilgrim State Psychiatric Center, (¢) adopting Associates’ Conceptual Master Plan as amended by the Town's Planning Staff, (4) permitting Associates te redevelop Phase 1 in accordance with the PSPRD and the Conceptual Master Plan as so amended, (e) overriding the conditions imposed upon the development by the Suffolk County Planning Commission by resolution dated February 1, 2017, and (1) reserving decision as to Phases 2 and 3 of the development until Phase 1 is substantially complete, thereby authorizing in significant part the development of what is commonly known as the Heartland Town Square Project ("Heartland"). A copy of the July 18, 2017 Resolution is annexed hereto as Exhibit 1 2. Petitioners seek the forgoing relief on the grounds, among others, that in adopting the July 18, 2017 Resolution, the Town (a) failed to identify and take a hard look at relevant areas of environmental concern, including the edueational, social, demographic and Sconomic impacts of Heartland upon the School District and its neighborhoods and citizens, (©) failed to adopt, or even consider, any measures to mitigate the foregoing impacts, © failed to provide a reasoned elaboration for its determination to proceed with Heartland in the face of these unmitigated impacts, (d) failed to supplement its generic environmental impact statement after the passage of several years despite the presentation by the School District of evidence of new and changed circumstances, despite the recommendation by the Suffolk County Planning Commission that the Town reconsider the real estate tax impacts of 2the project upon a School District constrained by the statutory "tax cap" and its already heay ly burdened residential "homestead" taxpayers upon whom the cost of educating the burgeoning student population would weigh disproportionately, and despite the Commission's recommendation that the Town consider mitigating the impacts upon the School District by setting aside land within Heartland for school purposes, and (e) committed impermissible spot zoning by ado 1g amendments to Chapter 68 (the “Zoning Law”) of the Code of the Town of Islip (the “Town Code”) that were not made in accordance with the Town’s Comprehensive Plan, 3. The School District is a municipal corporation of the State of New York, organized fand existing under the Constitution and Education Law of the State for the purpose of delivering public educational services to all eligible students within its confines, with principal offices at $2 Third Avenue, Brentwood, New York. 4. The Board of Education is the governing body of the School District with the authority to sue and be sued on its behalf. 5. Feliciano is the President of the Board of Education of the School District. 6 The Civic Association is a duly registered New York State not-for-profit corporation with a membership base that includes residents from the Town of Islip and homeowners residing in properties directly adjacent to Heartland. The Civie Association has a mailing address at 105 Maxess Road, Suite 124, Melville, New York 11747 c/o Justin R Marino, Esq. 7. Fritz is a “homestead” taxpayer of the School District, and a lifelong resident of the hamlet of Brentwood, who resides at 227 Ocean Avenue, Brentwood, NY.8. The Town is a municipal corporation and political subdivision of the State of New York, with principal offices at 655 Main Street, Islip, New York. 9. Upon information and belief, Associates is a New York domestic limited partnership, with its principal offices 1 Executive Drive, Edgewood, NY 11717 and is the owner of the land upon which Heartland is located, and is the entity whose application was granted in principal part by the July 18, 2017 Resolution. Upon further information and belief, Pilgrim East, LP is a New York domestic limited partnership with offices at 1 Executive Drive, Edgewood, NY 11717 and is the owner of land subject to the PSPRD zoning amendment. 10. The School District is aggrieved by the amendment to the Town Code that created the PSPRD because the amendments will damage the School District's ability to provide public educational services and will result in diminished traffic and pedestrian safety at North Middle School. 11, The PSPRD is located within the School District and the School District is required to provide public educational services to all eligible students within its designated geographic area, Associates estimates that approximately 1,807 school-aged children are expected to reside in the proposed development, The Town failed to account for the negative impacts that would occur for the School District by so drastically altering existing patterns of population concentration. ‘The School District will be required to provide public educational services to the new residents who will reside in the PSPRD. The School District does not have the present capacity, or the means to generate enough funds to increase its capacity, in order to provide public educational services to the children who will reside in the PSPRD. The addition of so many students in such a short period of time will result in severe negative impacts to thefinancial health of the School District and its ability to provide all school age residents with public educational services. 12. North Middle School is owned and operated by the School District, North Middle School is located less than one mile from the PSPRD at 350 Wicks Road. Wicks Road and College Road will be severely impacted by increased traffic as a result of the influx of new residents who will reside in the PSPRD. ‘The School District has a heightened duty to ensure that its student are safe, combined with a specific identifiable traffic safety concem different than the public at large. The PSPRD does not address the safety of children walking to North Middle School, being driven by parents, or the deterioration of the current patter used by buses to enter and leave North Middle School on Wicks Road. 13. Fritz is aggrieved by the PSPRD due to his status as a homestead taxpayer in the School District. By virtue of his residency in the School District that will have to furnish facilities to the new school population emerging from the zoning amendment, Fritz will be burdened by an additional tax burden, diminished quality of the School District and a loss of property value of his residence. 14. The membership of the Civic Association includes homeowners residing at 12 Kilmer Avenue, 14 Kilmer Avenue, 16 Kilmer Avenue, 17 Kilmer Avenue and 18 Kilmer Avenue. Kilmer Avenue is directly adjacent to the PSPRD. A complete list of the members of the Civie Association is attached as Exhibit 13. The membership of the Civie Association has been aggrieved by the PSPRD because the project will: increase traffic in their immediate neighborhood; result in poor operating conditions for several intersections in their neighborhood; result inthe destruction of historic resources and negative visual impacts easily observable from their properties; irreparably alter the development pattem of theirneighborhood and increase population density; introduce retail and commercial uses to this single-family residential neighborhood resulting in a fundamental change to the character of the neighborhood and the residents’ quality of life; and additional noise, light and construction impacts related to their close proximity to the project. 15. In or about April 2003, Associates submitted a petition to the Town seeking the rezoning of the Heartland premises from Residence AAA, in which the primary permitted use was single-family owner-occupied detached dwellings, to PSPRD, pursuant to which the Property would be developed for a mix of high-rise apartment buildings, office and commercial uses, 16. On or about September 9, 2003, the Town, as lead agency under the State Environmental Quality Review Act ("SEQRA"), determined that the action proposed by Associates could have significant impacts upon the environment, and accordingly issued a Positive declaration requiring the preparation of a draft environmental impact statement ("DEIS") 17. Following the issuance of the positive declaration, the Town and Associates engaged in a scoping process, by which impact issues that required study and analysis were identified as follows: Land; Water; Air; Open Space and Recreation; Critical Environmental Areas; Transportation; Energy; Noise and Odor; and Growth and Character of the Community or Neighborhood. 18. Associates thereafter submitted a DEIS in April 2005, a revised DEIS in June 2007, and a further revised DEIS and Addendum in December 2008. 19. Upon instructions of the Town, in March 2009, Associates submitted amended Petitions seeking approval of the development of Heartland in three phases in accordance with@ Conceptual Master Plan providing for a total of approximately 4,000,000 square feet of office space, 1,000,000 square feet of retail space, and 9,130 residential units, 20. On or about March 10, 2009, the Town issued a further positive declaration Which, among other things, required the preparation of a draft generic environmental impact statement ("DGEIS"). 21. The DGEIS prepared by and on behalf of Associates was accepted by the Town 48 complete on or about April 14, 2009. Excerpts from the DGEIS relative to the subject of the impacts of Heartland upon the educational resources of the community are annexed hereto as Exhibit 2, 22. A public hearing with respect to the DGEIS was conducted on or about May 28, 2009, at which numerous comments were made expressing concern as to the impacts upon the School District and its rendition of educational services to the Brentwood community posed by the addition of more than 9,000 residential units and 9,000 new families to an already rapidly expanding student population, 23. On August 26, 2009, counsel for the School District presented written comments ‘upon the DGEIS on behalf of the School District, which included an extensive planning analysis prepared by the Office of School Planning and Research of Westem BOCES of counsel’s transmittal letter and of the August 2009 OSPR Report are ("OSPR"). Copi annexed hereto as Exhibit 3 24. Among the issues identified and discussed in the OSPR Report were the impacts of the Heartland upon student enrollment in light of the operational capacities of the schools of the Schoo! District most likely to be affected by the addition of children generated by thousands of new residential units, the predictable need for new and expanded school buildingsand infrastructure, the impact upon the transportation of students to and from the schools of the District, the staggering of the start and end of school days and the scheduling of lunch service to students, the impact upon the availability to students of extracurricular activities, the staffing needs of the School District (administrative, instructional and non-instructional), and the funding of the additional expenses that the School District would necessarily incur as a result of the development of Heartland as proposed. 25. By letter dated August 4, 2010, counsel to the School District submitted an excerpt from the Comprehensive Long Range Planning Study prepared by OSPR for the School District, by which the OSPR Report previously submitted to the Town was updated and supplemented. Copies of counsel's transmittal letter and of the 2010 OSPR Planning Study are annexed hereto as Exhibit 4. 26. On or about April 24, 2014, a Final Generic Environmental Impact Statement (FGEIS"), prepared by Associates on the Town's behalf, was accepted by the Town as complete, wherein the Town purported to address all of the comments made in connection with the DGEIS, including comments submitted by and on behalf of the School District and its residents, and to identify the measures, if any, that the developer proposed to take in mitigation of any environmental impacts referenced in the comments and deemed to be significant. Excerpts from the FGEIS pertinent to the impacts of Heartland on the School District and its educational mission are annexed hereto as Exhibit 5. 27. On November 17, 2014, the Town issued its SEQRA Findings Statement (the "Findings Statement"), a copy of which is annexed hereto as Exhibit 6 28. _ As reflected in the FGEIS and the Findings Statement, the response of the Town to every issue raised by and on behalf of the School District was the same — that the SchoolDistrict will have more than adequate financial resources to meet all of the challenges posed by ‘the enormous Heartland project when, "at build-out," it receives an annual net windfall of $29,000,000 in tax revenue. 29. Thus, in the Findings Statement under the category of "Sociceconomics," the Town determined that "The fiscal analysis performed as part of the GEIS indicates that, at build-out, the Brentwood School District will receive almost $29 million annually in net property taxes (i.., in excess of the added costs to the school district to educate the school-age children generated by Heartland Town Square)." 30. Similarly, under the category of "Community Facilities and Services," the Town found in pertinent part as follows: The subject property is situated within the Brentwood Union Free School District (UFSD). Using standard, widely accepted factors, it is estimated that approximately 1,807 school-aged children will be generated by the proposed development. Even if the total projected number of students were to attend the Brentwood UFSD, the School District will receive a net annual tax benefit of almost $29 million from the proposed development at build- out. This net tax benefit will enhance the ability of the School District to finance the upgrade and expansion of existing schools within the district. It will also afford the School District the ability to purchase property to construct additional school-related facilities, if needed. 31. On or about April 16, 2015, the Islip Planning Board conducted a public hearing upon Associate's petition, 32. By letter to the special counsel for the Town dated June 3, 2015, a copy of which is annexed hereto as Exhibit 7, the attomey for the School District informed the Town of changes in the District's circumstances since the issuance of the DGEIS, and stated as follows on the subject of the Town's SEQRA review (emphasis added):In connection with the Town's review of the zoning amendment and the Heartland Project, comments made by and on behalf of the School District and its constituents, and incorporated in the FGEIS (see Section 4.26.1), have, we believe, brought into sharp focus the fact that increases in the District's enrollment by reason of the development of Heartland are likely to have a significant adverse effect upon the delivery of the District's services. As of the publication of the DGEIS, some of the District's schools had already exceeded their operating capacity, and others were projected to do so in the near future. Since the issuance of the DGEIS, the District's enrollment has continued to increase even without the introduction of students from the Heartland Project. As a consequence of the anticipated additional growth in enrollment resulting from the proposed construction of thousands of new residential units, it is inevitable that at some point in the development of Heartland, the School District's infrastructure, programs and staffing will need to undergo dramatic expansion and upgrading. ‘The Town's responses to the concerns expressed on the School District's behalf have been the same in virtually every instance: According to the Town, the Project will, at build-out, generate tax revenue for the School District that will exceed by nearly $29 million per year the cost of educating the additional Heartland students, and these surplus revenues can be applied to mitigate any and all of the anticipated impacts of the Project. In calculating what on its face appears to be a potential windfall to the District (see FGEIS, Response CF-1 and Table CF-14), the Town began with the total amount budgeted by the District for the 2012-2013 school year ($324,363,514), and subtracted from that sum the state aid anticipated for that school year ($232,235,857), leaving $92,127,657 to be raised by a levy on District real estate. The Town then divided that amount by the District's enrollment during that year of 16,739, to arrive at the expenditure to be made for each pupil out of local tax revenues (85,504). By multiplying this last amount by 1,807 (the predicted number of new students from Heartland), the Town concluded that the cost to the School District in local tax revenues of educating the Heartland students would be $9,945,318. Based upon the projected full value assessment of "homestead" properties (owner-occupied residential units) and "non- homestead” properties (units of every other description), and the discrete equalization rates assigned to homestead and non-homestead properties, the Town determined that Heartland, when fully developed, would generate nearly $38,908,613 in local real estate tax revenues for the School District alone. Thus, according to the Town, the District would realize about $29 million annually in local taxes beyond the sums needed to educate the 1,807 Heartland students, which, the Town noted, could be used for school construction, program enrichment and the containment of the property tax bite on existing homeowners. 10[T]he calculation cannot work unless state aid to the District can be relied upon to increase proportionately to increases _in student enrollment. Despite the increasing costs of education across the _state, however, state aid to schools has in recent years remained _notoriously flat. If a school district were to spend a total of $324,363,514, the actual expenditure per pupil would be $19,378. Assuming that the cost of educating each additional student would be the same $19,378 —- an unlikely proposition where schools are already at maximum capacity -- the cost of educating 1,807 additional students would be $35,015,525, not $9,945,318. Some of that cost might be covered by additional state aid, but not necessarily so. Since the 2012-2013 school year, the strict’s enrollment has increased by several hundred students, but, despite _the additional costs associated with the increased enrollment, the District's state aid has remained essentially the same. Thus, even if the District were to receive the nearly $39 million in new revenues from Heartland taxpayers as predicted by the Town, it could not count on a surplus without considerable extra help from the State. ‘The Town's calculation of the new revenue stream, moreover, fails to take into account that the School District, like other local_governments in New York, is constrained by a real property tax_cap of 2.0% or the consumer price index, whichever is lower. The cap on increases in the School District's tax levy for the forthcoming school year is 1.62% over the levy for the previous school year. The additional revenues needed in order to meet the demands of an increased enrollment could be achieved only if the tax cap were overridden by 60% of the votes cast at the District's annual budget vote, an improbable prospect given the predictable impact of Heartland upon the District's "homestead" taxpayers who make up the voting public. Furthermore, as we understand it, the Town assesses real property on a dual track system that distinguishes between “homestead” and "non- homestead" properties, each category having a different equalization rate. The total taxes levied by cach taxing authority within the Town are allocated between homestead and non-homestead properties. As reflected on page 4-255 of the DGEIS, all of Heartland would be considered non-homestead for tax purposes except for owner-occupied condominium units representing about 10% of Heartland's residential apartments. It appears from tables contained in the DGEIS (see, e.g., Table 4112) that the tax revenues expected to be generated by homestead properties will amount to about 3.5% of all Heartland revenues. Thus, of the nearly $39 million that the Town projects in annual school tax revenues from Heartland, less than $1.4 million would derive from homestead taxpayers. If and when Heartland is fully developed, the vast majority of the District's homestead properties will exist outside of Heartland, and their owners will accordingly pay a uconsiderably higher percentage of the District's tax levy than will the Heartland homestead property owners. We believe, therefore, that as school taxes are presently assessed, the non-homestead portion of the District's levy will be spread among the growing number of non- homestead taxpayers both within and without_the Heartland development, thereby easing the tax burden on all such taxpayers. In contrast, however, almost all of the homestead allocation of the School District's tax levy -- including the homestead portion of the cost of educating the Heartland pupils -- will fall upon homestead taxpayers outside of Heartland, ie., the already overburdened homeowners of Brentwood who can barely afford their current taxes. The accuracy of the calculation of the School District's projected surplus also depends upon the number of school-aged children likely to reside in the Heartland community. Based upon formulas of unexplained Provenance, the developer and the Town predict that there will be no more than 21 school-aged children for every 100 Heartland housing units. School-aged children, however, abound in Brentwood and, as reflected in DGEIS Table 3-25, they do so in measurably greater proportions than in the Town of Islip generally and in the County of Suffolk. Even the School District's own demographic projections based upon_a five-year-old study have been outstripped by its actual enrollment. Itis, frankly, difficult to believe that although 70% percent of the apartments at Heartland will have at least two bedrooms. fewer than_a third of those apartments are expected to house even a single school-aged child, Finally, the Town's calculation of the School District's tax benefits is based upon the full build-out of the Project, which is not expected to occur for the next 10 to 15 years, if it occurs at all. No_projections are offered_as_to_how the District will pay for the new and/or expanded schools that will be required to accommodate_increases in enrollment at every grade level even in the early stages of the Project's development. Nor is there any way of knowing how the Project will ultimately be configured and how buildings and units will ultimately be allocated among commercial and residential uses as the realities of the real estate market dictate the most profitable yield. In sum, the Board of Education does not see how the District will receive the additional tax revenues from the Project that it will necessarily require in order to meet the needs of the Heartland children. While substantial sales taxes, income taxes and usage fees will obviously be generated by the Project, those revenues will go to the State, County or Town and not to the District. The District's overall levy, although it could in theory increase with growth in the assessed value of the District's taxable properties, would remain subject to the property tax cap and 12would simply be spread over a wider tax base. Therefore, the prediction that_the District will receive millions in surplus tax revenue from Heartland_appears unfounded. 33. By letter dated December 11, 2015, counsel for the School District provided to the Town (a) OSPR's 2015 Addendum to the Long Range Planning Study undertaken on behalf of the School District, reflecting the actual growth in the School District's enrollment five years following the 2010 Study, and enrollment projections for the next decade using the same demographic rubric as used by Associates in the DGEIS and upon which the Town relied in its Findings Statement, and projecting that the District's enrollment with the addition of the children of Heartland would inevitably cause the schools of the District to exceed State Educational Department operational capacity guidelines; and (b) a Power Point presentation by the School District Architect, Tetra Tech Architects and Engineers ("Tetra Tech"), depicting the need of the Schoo! District to expand its facilities, or build new ones, in order to accommodate the increased student population resulting from the School District's current rate of growth and the additional enrollment engendered by Heartland and demonstrating the lack of open space within the School District for the expansion of existing schools or the construction of new facilities. Copies of the letter of transmittal, the 2015 Addendum and Power Point display are annexed hereto as Exhibit 8. 34, Attached hereto as Exhibit 9 is the April 26, 2016 report of Tetra Tech regarding the Schoo! District's growth and its effect on its facilities, including estimates of the costs of various options for meeting the demands of expansion due in major part from the influx of Heartland students, which was forwarded to the Town at a later date. 35. On August 18, 2016, the Planning Board recommended that the Town approve the application, but limit the change of zone for now to Phase | of Heartland, 13,36. Pursuant to the provisions of the Suffolk County Administrative Code, Associates’ petition was forwarded to the Suffolk County Planning Commission ("SCPC") for its review and determination. 37. Following public hearings on January 4 and February 1, 2017, the SCPC resolved to approve the petition in its entirety, subject, however, to certain specified conditions and comments. A copy of the SCPC resolution is annexed hereto as Exhibit 10. 38. Among other things, the SCPC recommended the following: ‘The Town of Islip should reconsider that section of the EIS dealing with tax impacts upon the Brentwood School District and look again at the issue and the tax analysis. The Town should also consider reservation of land for a possible new school. 39. On April 26, 2017, the Town conducted a public hearing upon Associate's Petition, and in connection with that hearing, the Town invited written comments upon the petition during the months leading up to the hearing and for a period of time following the hearing, 40. On April 24, 2017, counsel for the School District, on the School District's behalf, submitted copies of all documents previously provided to the Town in connection with Heartland, together with a new demographic study performed by the School District auditors, Cerini & Associates, LLP ("Ceri , predicated on the actual historical occupancy of large housing complexes within the School District, wherein Cerini predicted a growth in the number of school-aged children in the School District resulting from the development of Heartland of more than three times the number projected in the 2009 DGEIS. A copy of Cerini's February 2017 Heartland Town Square Analysis Report is annexed hereto as Exhibit 11 441. On July 18, 2017, the Town approved the petition in all respects, except that, in accordance with the recommendation of the Town Planning Board, the Town granted a change of zone for Phase 1 of Heartland, encompassing 113 acres of land, approximately 626,000 square feet of office space, 560,000 Square feet of retail space, 3,504 residential units, and 105,500 square feet of "civic space," while deferring a change of zone for Phases 2 and 3 until Phase 1 is 70% complete, the Town making clear that none of the space set aside for municipal purposes was to be used as the site of a school. SEQRA Requirements 42. SEQRA requires that an agency consider environmental impacts equally with social and economic factors during discretionary decision-making. This requires that an agency with discretionary decision-making authority must assess the environmental significance of all actions and then balance the environmental impacts of that action with social and economic factors when deciding to approve or undertake the action. 43. Environment is defined broadly to include existing pattems of population concentration, distribution, or growth as well as existing neighborhood or community character. See N.Y. ECL §8-0105(6). 44. In fact, one of the questions that must be answered on the full environmental assessment forms is whether the “proposed action may create a demand for additional community services (¢.g., schools).” See Full EAF Question 18(d). 45. Whenever an agency receives as application for a discretionary approval, it must first classify the action as Type I, Type Il or Unlisted.46. Next, for all Type I and unlisted actions, an agency must systematically consider environmental factors involved with the action to make a reasoned determination regarding the likelihood that the action may have a significant adverse impact on the environment. 47. Ifa significant adverse impact is likely to occur, an Environmental Impact Statement (EIS) is prepared to explore ways to avoid or reduce adverse environmental impacts or to identify a potentially less damaging alternative. 48. The EIS is generally prepared by consultants hired and paid by the applicant secking approvals. However, the permitting agency is responsible for reviewing drafts of the EIS and is ultimately responsible for ensuring that the EIS complies with SEQRA, Part 617 49. In the instant case, upon information and belief, the DGEIS and FGEIS for the Project were prepared by a consultant hired and paid by the developer. 50, When an EIS is required, it must include all the information required by SEQRA. 51. For example, the EIS must evaluate the potential significant adverse environmental impacts at a level of detail that reflects the severity of the impacts and the reasonable likelihood of their occurrence, In addition, the EIS must accurately and thoroughly describe the short term, long term, cumulative, and other associated impacts of a proposed action, as well as of the altematives to that action. ECL §§ 8-109(2)(a); 6 NYCRR. §617.9(14)(£)(3). The EIS must also include mitigation measures proposed to minimize the environmental impact” of a project. ECL § 8-109(2)(); 6 N.Y.C.RR. §617(0(7). 52. As the New York Court of Appeals has stated, an EIS must allow a decision maker to (1) identify the relevant areas of environmental concer, (2) take a "hard look" at each, of those areas, and (3) provide a "reasoned elaboration" of the basis for its decision. See, e.g., 16Jackson v. New York State Urban Development Corp., 68 N.Y 2d 400, 417, 503 N.Y.S.24 298, 305 (1986). As explained below, the FGEIS for the Project fails to meet this standard 53. In addition, SEQRA and its regulations obligate every involved agency to make certain findings before approving or carrying out an action that has been the subject of an EIS. The agency must find that “all requirements [of the regulations] have been met." 6 N.Y.CRR. § 617.9(¢)(2). The agency must also find that "consistent with social, economic and other essential considerations, from among the reasonable alternatives thereto, the action to be carried out, funded or approved is one which minimizes or avoids adverse environmental effects to the maximum extent practicable, including those disclosed in the relevant environmental impact statement." 6 N.Y.C.R.R. § 617.9(c)(3) (emphasis added). Under 6 NY.CR.R. § 617.9(6)(4), the agency must make a further written finding that "consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided by incorporating as conditions to the decision those mitigative measures which were identified as practicable." 54. As explained below, the Findings Statement for the Project fails to meet this standard. AS AND FOR A FIRST CAUSE OF ACTION - SELECTION OF IMPROPER BUILD YEAR 55. Petitioners repeat and re-allege the allegations contained in paragraphs 1-54 above, and incorporate such allegations by reference as if set forth herein. 756. The environmental impacts of any development project are experienced over a long period of time, starting at or before the beginning of construction, and continuing until such time, if ever, when the development no longer exists. 57. Although a project's impacts exist for decades, an EIS typically chooses a single time to assess the impacts of a project. That time is known as the "build year," which is the year when the project is expected to be both fully constructed and fully occupied. 58. Impacts in the build year are assessed by comparing the conditions which would exist in that year if the project were not built to those conditions which would exist in that year if the project were built. 59. Selection of a realistic build year is critical to a "hard look" at the impacts of a Project. I'an unrealistic build year is chosen, most, if not all of a project's impacts are likely to be skewed. To take just one example, traffic impacts can vary greatly with changes in the build year. Adding a certain number of cars to a neighborhood's streets in a given year may just make the streets more crowded. Adding the same number of cars several years later may make the same streets impassable because the streets have become more crowded in the interim due to population growth in the area, diminished subway usage, or other factors. 60. Upon information and belief, project sponsors are often resistant to changing the build year once an EIS has been prepared because such a change is costly, since the analysis must be redone. Changing the build year for an environmental analysis that has already been done also introduces substantial uncertainty, since the new analysis may reveal different or ‘more severe impacts than those shown by the earlier analysis, 61. The DGEIS and FGEIS submitted by Associates establishes 2017 as the build year for Phase | and 2027 as the build year for all three phases. 1862, Selection of these build years by Associates was completely unrealistic and acceptance of these build years by the Town was not reasonable, 63. Despite the selection of 2017 as the year that construction of Phase I would be complete, no approvals were received until July 2017 and no construction has yet occurred on the site, In fact, no construction can occur until site plan approval is received, Once those final approvals are received, itis likely to be an additional five (5) years before Phase | is complete Nonetheless, no supplemental analysis was required to reflect the potential impacts in an accurate build year. 64. Because the build year for the Project is grossly wrong, the FGEIS did not allow the decision makers involved to take the necessary hard look at the environmental impacts of the Project. ‘The incorrect build year distorts the analyses in the FGEIS, including the traftic and air quality analyses, the stormwater runoff analysis, and the analysis of community resource impacts, including those impacts on the Petitioner District, 65. The traffic analysis, for example, is plainly distorted by the use of an incorrect build year. The FGEIS assumes 2 0.65 percent annual increase in traffic (FGEIS at 256). If that growth in traffic were to continue, and a more realistic build year of, for example, 2022 were used, the community's streets would be seven percent more crowded at the time the Project is fully occupied than they will be in 2017. As a result, the Project's impacts on traffic would be substantially more severe. 66. Moreover, since the issuance of the FGEIS, the School District's enrollment has increased even in the absence of the Heartland project. If that growth in enrollment were to continue, and a more realistic Phase | build year of, for example, 2022 were used, the District’s 19Schools would be even more crowded than they are in 2017. As a result, the Project's impacts on the School District would be substantially more severe, 67. In fact, the FGEIS utterly fails to account for continued increases in the School District's student enrollment even without the introduction of any students from the Project : Candace J. Gomez 5a. Brody D. Smith, Kathleen M. Bennett, Esq. 1010 Franklin Avenue, Suite 200 Garden City, NY 11530-2900 Telephone: (516) 267-6336 ‘Town Board of the Town of Islip Town Hall - 655 Main St Islip, New York 11751 22-50 Jackson Avenue Associates, L.P. 1 Executive Drive Edgewood, NY 11717 Pilgrim Bast, L.P. 1 Executive Drive, Edgewood, NY 11717 45STATE OF NEW YORK ) )ss.: COUNTY OF SUFFOLK ) Robert Feliciano, being duly swom, deposes and says that deponent is the President of the Board of Education of the Brentwood Union Free School District, the corporation named in the within action, that ddeponent has read the foregoing Verified Complaint and knows the contents thereof, that the same is true to deponent’s own knowledge, except as to such matters therein stated to be alleged on information and belief, and as to those matters deponent believes it to be true. BRENTWOOD UNION FREE SCHOOL DISTRICT » oe ert Feliciano’ President, Board of Education Sworn to before methis CRISTIAN £. TREJO NOTARY PUBLIC-STATE OF NEW YORK No. 0176249979, Qualified in Suffolk County My Commission Expires 06-20-20, 46 150606. 10472017Veri STATE OF NEW YORK ) COUNTY OF SUFFOLK ) Justin Marino, being duly sworn, deposes and says that deponent is an Oricer of the 4 Towns Civie “Association, Inc, elected to the position of Legal Counsel of the corporation named inthe within action, that deponent has read the foregoing Verified Complaint and knows the contents thereof, thatthe same is true to deponent’s own knowledge, except as to such matters therein stated to be alleged on information and belief, and as to those matters deponent believes ito be true. 4 TOWNS SDUEPSSOCIATION, INC. va ee — Sworn to before me this 1* day of November, 2017, Notary Public ‘SPIRDOULA KARMANOLOS NOTARY Pus - STATE OF MEW YORK QUNFED NSUFONKCOMTY ‘CoMSSION EXPRES NOVEMBER 16,29.STATE OF NEW YORK ) COUNTY OF SUFFOLK, ) Joseph Fritz, Esq., being, duly sworn, deposes and says that deponent is the individual named in the within action that deponent has read the foregoing Verified Complaint and knows the contents thereof, tht the same i tue fo deponent’s own knowledge, except as fo such matters thercin stated to be alleged on information and belief, and as to those matters deponont believes it to be true JOSEPH FRITZ, ESQ. By: 7 seph Fritz, Esq. Sworn to before me this 1" day of November, 2017. Dh. hy Notary Public JEssio4w, wanauez wolESSGA Mano ee coneSaserenStoh Coun, 2)