FILED: APPELLATE DIVISION - 4TH DEPT 10/02/2023 03:24 PM CA 22-01929

NYSCEF DOC. NO. 46 To be Argued by: RECEIVED NYSCEF: 10/02/2023

CHRIS G. TRAPP
(Time Requested: 15 Minutes)

New York Supreme Court

Appellate Division—Fourth Department

DANIEL T. WARREN, Docket No.:

CA 22-01929
Petitioner-Appellant,
CA 23-00546
– against –

THE PLANNING BOARD OF THE TOWN OF WEST SENECA,

TOWN OF WEST SENECA, NEW YORK and CANISIUS HIGH
SCHOOL OF BUFFALO, NEW YORK, by and through
Fr. David Ciancimino, S.J., as its President,

Respondents-Respondents.

BRIEF FOR RESPONDENTS-RESPONDENTS THE

PLANNING BOARD OF THE TOWN OF WEST SENECA
AND TOWN OF WEST SENECA, NEW YORK

GRECO TRAPP, PLLC

Chris G. Trapp, Esq.
Attorneys for Respondents-Respondents
The Planning Board of the Town of
West Seneca and Town of West
Seneca, New York
14 Lafayette Square, Suite 1700
Buffalo, New York 14203
(716) 856-5800
cgtrapp@grecolawyers.com

Erie County Clerk’s Index No. 808016/22

-

(800) 4-APPEAL • (512879)

 TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
QUESTONS PRESENTED ..................................................................................... 1
STATEMENT OF THE CASE................................................................................. 1
STATEMENT OF FACTS ....................................................................................... 3
THE MAJORITY OF CASES CITED BY APPELLANT ARE IRRELEVANT
FOR PURPOSES OF THIS APPEAL ..................................................................... 7
THE DETERMINATION OF THE PLANNING BOARD WAS NEITHER
ARBITRARY OR CAPRICIOUS NOR IRRATIONAL ......................................... 8
DOCUMENTS WERE PROPERLY EXCLUDED FROM THE RECORD ........ 12
THE GREEN AMENDMENT IS INAPPLICABLE............................................. 13
APPELLANT’S PROCEDURAL ARGUMENTS LACK MERIT ...................... 16
INJUNCTIVE RELIEF WAS CORRECTLY REJECTED ................................... 21
RESPONDENTS’ PROCEDURE WAS PROPER ................................................ 23
CONCLUSION ...................................................................................................... 34

ii
 TABLE OF AUTHORITIES

Cases
A & J Concrete Corp. v Arker, 54 NY2d 870 (1981) ............................................ 21
Fresh Air for the Eastside, Inc. v New York, et al, 2022 NY Slip Op 34429 (Sup
Ct, Monroe County 2022) ............................................................................. 13, 14
Harley v United Servs. Auto. Ass’n., 191 AD2d 768 (3d Dept 1993) ................... 20
Little Joseph Realty v Town of Babylon, 41 NY2d 738 (1977) ............................. 29
Marte v City of New York, 2023 NY Slip Op 31198 (Sup Ct, New York County
2023) ............................................................................................................. 15, 16
Matter of 125 Bar Corp. v State Liquor Auth., 24 NY2d 174 (1969) ..................... 8
Matter of Albany, City of v McMorran, 16 AD2d 1021, 1022 (3d Dept 1962) ..... 10
Matter of Brown v Foster, 73 AD3d 917 (2d Dept 2010)...................................... 10
Matter of Grasso v Town of W. Seneca, 63 AD3d 1629 (4th Dept 2009) ................ 4
Matter of Harvey v New York State Dept. of Envtl. Conservation, 235 AD2d 625
(3d Dept 1997). ................................................................................................... 18
Matter of Howard v Wyman, 28 NY2d 434 (1971)................................................ 11
Matter of Jamaica Recycling Corp. v City of New York, 12 Misc 3d 276 (Sup Ct,
New York County 2006) ....................................................................................... 8
Matter of Kunik v N.Y.C. Dept. of Educ., 142 AD3d 616 (2d Dept 2016)............. 10
Matter of Legacy at Fairways, LLC v McAdoo, 67 AD3d 1460 (4th Dept 2009) ... 9
Matter of Levy v SUNY Stony Brook, 185 AD3d 689 (2d Dept 2020)................... 10
Matter of Mid-State Mgmt. Corp. v N.Y.C. Conciliation & Appeals Bd., 112 AD2d
72 (1st Dept 1985) .............................................................................................. 11
Matter of Poster v Strough, 299 AD2d 127 (2d Dept 2002)................................ 8, 9
Matter of Sachs v Bd. of Educ. of Mineola Union Free Sch. Dist., 71 AD2d 898
(2d Dept 1979) .................................................................................................... 10
Matter of Sun-Brite Car Wash, Inc. v Bd. of Zoning & Appeals of Town of N.
Hempstead, 69 NY2d 406 (1987) ................................................................. 28, 29
Roberts v Pollack, 92 AD2d 440, (1st Dept 1983) ................................................ 10
Rochester Tel. Corp. v United States, 307 US 125 (1939) .................................... 11

Statutes
CPLR 2004 ............................................................................................................. 20

iii
CPLR 7803(3) ........................................................................................................ 10
CPLR 7804(c) .................................................................................................. 17, 18
CPLR 7804(f) ..................................................................................................... 9, 17
General Construction Law § 41 ............................................................................. 23
General Municipal Law § 239-m ............................................................................. 6
Public Officers Law § 103(e) ........................................................................... 31, 32
Town Law § 267-c(1) ............................................................................................. 29
Town Law § 274-a(9) ............................................................................................... 7

Regulations
6 NYCRR 617.2(c) ................................................................................................ 24
6 NYCRR 617.4(b)(6)(i) ........................................................................................ 24
6 NYCRR 617.6(b)(1)............................................................................................ 24

iv
 QUESTONS PRESENTED

1. Did the lower Court err in granting Respondents’, Town of West Seneca and

Planning Board of the Town of West Seneca, motion to dismiss the action filed by

Appellant?

Respondent answers in the negative.

2. Did the Hon. Mark J. Grisanti, J.S.C. err with respect to the settlement of

the Record on Appeal in the instant action?

Respondent answers in the negative.

STATEMENT OF THE CASE

Appellant, Daniel Warren, commenced another action involving the

development of athletic fields for Canisius High School, a co-Respondent in this

case. This is not the first time that Appellant has proceeded to involve the

judiciary since the first action was filed more than ten years ago and this Court

ultimately dismissed same thereby essentially establishing the right of the co-

Respondent to develop their property for athletic fields. This latest action was

commenced by service of an Order to Show Cause seeking to stop the

construction of the athletic fields against which Appellant has raised a number of

arguments, many of which are either irrelevant or factually inaccurate. There was

an initial action filed in 2021 which was before the Hon. Donna Siwek, J.S.C.

1
which dealt with the process undertaken by the then Town Attorney and the

Planning Board. That Court remanded the matter to the Planning Board for

further proceedings consistent with the directives of that Court on the issue of that

process. After that process was corrected, the matter once again went before the

Planning Board which rendered a finding under SEQRA and then, at a subsequent

meeting, made a decision on the presented site plan. On July 15, 2022, a day after

the Respondent approved the site plan, Appellant filed his Petition challenging the

Respondent’s actions in connection with the project. (R.129-87). On July 18,

2022, Appellant moved for a preliminary and permanent injunction via Order to

Show Cause with a Temporary Restraining Order seeking to prevent co-

Respondent Canisius from commencing any work on the project. (R.125-28). The

Hon. Mark J. Grisanti, J.S.C., signed the Order to Show Cause, but struck the

provision ordering a temporary restraining order. (R.127-28). The matter was set

down to be heard on September 28, 2022. (R.125).

Clearly not satisfied with this result, in mid-August 2022 Appellant moved

for a preliminary injunction again via Order to Show Cause with Temporary

Restraining Order seeking to prevent Canisius from performing any work on the

project. (R.370). Justice Grisanti signed this Order to Show Cause as well, but

again struck the provision ordering a temporary restraining order. (R.371-72).

This matter was set down to be heard on August 26, 2022. (R.370). That initial

2
request was denied by the lower Court and while the Court offered to determine

the merits of the entire case at that time, same was rejected by Appellant and thus

the original return date at the end of September was kept. (R.110). During that

interim, Appellant filed additional motions and subpoenaed the County of Erie.

(R.486-87, 2489-90). The Court ultimately denied Appellant’s motions and

granted Respondents’ motion to dismiss the action. (R.90-91).

Multiple other motions were filed by Appellant in this action (R.486-2379,

2457-2535, 2567-73) along with two additional claims with respect to the Zoning

Board of Appeals with the last case pending a decision on a motion to dismiss.

After further motion practice on the contents of the Record of Appeal before

Justice Grisanti and additional motions by Appellant with this Court, the lower

Court directed the contents of the Record on Appeal and a second Appeal was

filed by Appellant for the purpose of getting those documents before this Court for

review.

STATEMENT OF FACTS

In October of 2005, the Town identified the “Canisius High School Athletic

Facility” project as a SEQRA Type 1 action, requested lead agency status for the

project, and invited any involved or interested agencies to submit objections.

(R.189). Attached to that solicitation was the full environmental assessment form

(“EAF”) submitted by Canisius in connection with the project. (R.190-97). The

3
New York State Department of Transportation (“DOT”) had conducted a traffic

study in the area of the project during 2002. (R.196). Following the Town’s

Building Inspector’s grant of a building permit to Canisius for the project, a

member of the community appealed that decision to the West Seneca Zoning

Board of Appeals. The Zoning Board of Appeals determined that the Building

Inspector properly issued the building permit, as the Town Code was found to

permit school uses in residentially zoned property. (R.202). Appellant was one of

the parties who brought an Article 78 proceeding seeking to annul that

determination of the Zoning Board of Appeals and also the negative declaration

that was issued in connection with the project. See Matter of Grasso v Town of W.

Seneca, 63 AD3d 1629 (4th Dept 2009). In affirming the decision of the Supreme

Court dismissing the petition, this Court concluded that “[t]he determination of the

ZBA that the proposed high school athletic facilities constituted a permissible

educational use under the Town Code within the subject zoning district was

neither unreasonable nor irrational” and further that the Town complied with

SEQRA. Id. at 1630.

At a meeting of the Planning Board on April 8, 2021, Canisius requested

site plan approval for the third phase of the project, which contemplated

constructing baseball fields and attending structures at the athletic facility site, but

site plan approval was tabled at that time. (R.225-26). Site plan approval was

4
again considered by the Planning Board on May 13, 2021, and it was noted at that

meeting that all applications had been turned into the Department of

Environmental Conservation (“DEC”) and Army Corps of Engineers. (R.231-32).

Due to some concerns, however, the Planning Board again tabled its decision on

site plan approval. (R.233). Although ultimately approved by the Planning Board,

that determination was rejected and the matter remanded for further review as set

forth above. Specifically, the Planning Board was to forgo site plan approval until

a SEQRA declaration was made, and further, the Erie County Department of

Environment and Planning (“ECDEP”) was to be provided with a full statement of

the proposed action prior to a public hearing. (R.409-10).

At a Planning Board meeting on April 14, 2022, the Planning Board was

informed that correspondence from the DEC had been received, SHPO

conditional approval was granted on April 8, 2022, and the Planning Board

proceeded to address the issue of SEQRA declaration. (R.268-69). It was further

noted that Canisius’s full EAF had been sent to the following agencies for review:

DEC; DOT; ECDEP; Erie County Sewer District #1; Army Corps of Engineers;

Town of West Seneca Fire District; Town of West Seneca Environmental

Commission; and Town of West Seneca Engineer. (R.269). Moreover, as of that

meeting, all required agencies had approved of the project, with SHPO placing ten

conditions on their approval. (Id.). Because the SHPO approval had conditions,

5
the Planning Board tabled the site plan approval and SEQRA negative declaration

to allow the SHPO conditions to be published for thirty days so the public may

comment if desired. (R.269-70, 279). The Planning Board next met on June 9,

2022, at which time it was noted that approval letters from numerous agencies had

been received, including DOT, Army Corps of Engineers, DEC, ECDEP, SHPO,

among others. (R.285). The Planning Board discussed the SEQRA process and

actions it had taken, and also addressed comments by community members,

including Appellant. (R.286-89). Each of the numerous letters that Appellant sent

to the Planning Board were specifically addressed by a member of the Planning

Board. (R.287-89, 444). Notably, Appellant chose to not personally attend those

earlier meetings nor personally address the Planning Board or make any further

comments at any meeting; instead, he only chose to attend the June 9, 2022

meeting and sat silent even when given an opportunity to speak. (R.444). The

Planning Board unanimously voted to adopt a resolution issuing a SEQRA

negative declaration and to delay site plan approval for thirty days. (R.289-90).

The Respondents referred the matter to the ECDEP for consideration

pursuant to General Municipal Law § 239-m. (R.445). As part of the referral to

the ECDEP, Jeffrey Schieber (“Schieber”), Code Enforcement Officer for the

Town of West Seneca, sent over all of the documents described in the June 9, 2022

meeting minutes and all prior submissions, along with the SEQRA determinations

6
and documents generated as part of the full environmental review process.

(R.445). Thus, consistent with Justice Siwek’s ruling and Town Law § 274-a(9),

the ECDEP was put on notice as part of the referral and supplied with all of the

materials relied upon to make the determination of significance pursuant to

SEQRA. (R.446).

At the next meeting of the Planning Board on July 14, 2022, Schieber

notified the Planning Board that the ECDEP had acknowledged receipt of the

documents and advised the Town that they had no further comment with respect to

the project. (R.446, 463-65). Moreover, at that time all necessary agencies,

departments, and engineering reviews had been completed. Thus, the Planning

Board then approved the site plan. (R.446, 467-68). Again, Appellant chose not to

attend the public meeting or comment further, instead opting to subsequently file

another proceeding seeking to stop the project, as he had advised he would do

regardless of the process followed by the Town. (R.446).

THE MAJORITY OF CASES CITED BY APPELLANT ARE IRRELEVANT

FOR PURPOSES OF THIS APPEAL

In the interest of brevity, most of the cases cited by Appellant will not be

individually replied to herein in light of the fact that they are utterly irrelevant for

these proceedings. It is respectfully submitted that simply choosing to chain cite

cases does not make them more important or persuasive. While it is conceded that
7
cases may be cited for narrow issues, that simply is not the case for a majority of

the cases relied upon by Appellant. Instead, the fundamental issues presented as

set forth in the questions presented herein should be examined. Such examination

will reveal that there is no basis for a reversal of the lower Court decision.

THE DETERMINATION OF THE PLANNING BOARD WAS NEITHER

ARBITRARY OR CAPRICIOUS NOR IRRATIONAL

In a proceeding under CPLR 7803(3) to review an administrative

determination, “[p]etitioners bear the ultimate burden of proving that there is no

rational basis for the determination challenged and that the agency action was

arbitrary or capricious.” Matter of Jamaica Recycling Corp. v City of New York,

12 Misc 3d 276, 283 (Sup Ct, New York County 2006), aff’d, 38 AD3d 398 (1st

Dept. 2007), lv denied, 9 NY3d 801 (2007). Such proceedings reflect “the

common-law writ of mandamus to review, in which the Court must determine ‘the

rationality of the administrative act.’” Matter of Poster v Strough, 299 AD2d 127,

142 (2d Dept 2002) (quoting Matter of 125 Bar Corp. v State Liquor Auth., 24

NY2d 174, 178 (1969)).

In a proceeding under CPLR 7803(3) where there is raised a violation of a

lawful procedure, the court must determine “the rationality of the administrative

act”. Id.. In Poster, the court examined this standard of review. There, the

Appellant was a landowner that sought mandamus to review a town board’s

8
decision to deny his application to construct a break wall on the shoreline of his

property. Id. at 129. The town board concluded that the construction of hard break

walls is detrimental to the overall community because they adversely impact and

exacerbate the erosion of neighboring properties. Id.. To support this conclusion,

the town board provided affidavits asserting that its decision was based on, among

other things, its “experience and expertise in its efforts to minimize the loss of

beach area and to preserve this priceless natural resource for future generations.”

Id. at 131 (internal quotations omitted). The court considered the town board’s

evidence, as well as scientific data supporting the petitioner’s contrary argument.

Ultimately, the court concluded that the data “does no more than illustrate the

existence of two schools of thought in connection with the basic question that

underlies this case: Do hard structures do more harm than good?” Id. at 143. In

answering that question, the court stated that “the Board is vested with

untrammeled . . . discretion,” (id. at 141 [internal quotations omitted]), and “we

are not free to substitute our own opinion for that of the responsible agency.” Id. at

143.

On a motion to dismiss pursuant to CPLR 7804(f), “only the petition,

without additional facts alleged in support of the motion, may be considered . . . .”

Matter of Legacy at Fairways, LLC v McAdoo, 67 AD3d 1460, 1460 (4th Dept

2009). “In determining such a motion, the sole criterion is whether the petition

9
sets forth allegations sufficient to make out a claim that the determination sought

to be reviewed was ‘made in violation of lawful procedure, was affected by an

error of law or was arbitrary and capricious or an abuse of discretion’”. Matter of

Kunik v N.Y.C. Dept. of Educ., 142 AD3d 616, 617 (2d Dept 2016) (quoting CPLR

7803(3)). “In the absence of any indication that the petitioner’s claim is tenable or

that there is a material issue which requires a hearing, it [is] proper to dismiss the

petition.” Matter of Sachs v Bd. of Educ. of Mineola Union Free Sch. Dist., 71

AD2d 898, 899 (2d Dept 1979), aff’d, 50 NY2d 830 (1980). Further, in Matter of

Levy v SUNY Stony Brook, the Second Department explained that “[a]lthough the

factual averments set forth in a petition must be taken as true in the context of a

motion pursuant to CPLR 3211(a) and 7804(f), no such deference is given to ‘the

legal conclusions drawn by the pleader nor [its] interpretation of the statutes [or

contracts] involved.’” 185 AD3d 689, 690 (2d Dept 2020) (quoting Matter of

Albany, City of v McMorran, 16 AD2d 1021, 1022 (3d Dept 1962))). The court in

Levy further noted that “‘bare legal conclusion[s]’ set forth in a petition, without

more, are insufficient to state a valid claim for relief under CPLR article 78.” Id.

(quoting Matter of Brown v Foster, 73 AD3d 917, 918 (2d Dept 2010)). Similarly,

“‘factual claims either inherently incredible or flatly contradicted by documentary

evidence’ are not entitled to any presumption of truth.” Id. (quoting Roberts v

Pollack, 92 AD2d 440, 444 (1st Dept 1983)).

10
 Accordingly, “the judicial function is exhausted when there is found to be a

rational basis for conclusions approved by the [municipality].” Matter of Howard

v Wyman, 28 NY2d 434, 438 (1971) (quoting Rochester Tel. Corp. v United

States, 307 US 125, 146 (1939) (internal quotations omitted)). “Even though the

court might have decided differently were it in the [municipality’s] position, the

court may not upset the [municipality’s] determination in the absence of a finding,

not supported by [the] record, that the determination had no rational basis.” See

Matter of Mid-State Mgmt. Corp. v N.Y.C. Conciliation & Appeals Bd., 112 AD2d

72, 76 (1st Dept 1985), aff’d, 66 NY2d 1032 (1985).

Here, the process had been laid out at length by the Respondent Town and

all of the documents submitted for review by the relevant agencies had been

included. The actions of the Planning Board were appropriate and rational and

the Canisius project was thoroughly vetted over a span of sixteen (16) months

prior to a final site plan determination which was made. While it is conceded that

the prior process erred in addressing the site plan prior to a SEQR determination,

that was corrected such that a SEQR determination was made after forwarding all

relevant documents to all interested agencies. A SEQR determination was made

which was well reasoned and considered after which all of the materials were

sent to the County Department of Environment and Planning prior to a site plan

review and decision by the Planning Board more than thirty (30) days later.

11
 DOCUMENTS WERE PROPERLY EXCLUDED FROM THE RECORD

What Appellant sought to add are documents outside of the scope of his

own Notice to Appeal which are not relevant for the Record. For example,

Appellant sought to include papers relating to the subpoena sought against the

County of Erie even though such papers were not included in the Order from

which an appeal was sought. Interestingly, the lower Court effectively granted

the relief sought by the Appellant and neither Respondents nor Appellant filed an

appeal with respect to that determination.

Appellant also filed with the Appellate Division a copy of a Notice to

Admit even though the case was dismissed and, interestingly enough, a response

was filed by Respondent to the Notice. In spite of that, Appellant included only

the Notice to Admit and not the response apparently in an attempt to mislead the

Court and argue that there was no response and so everything must be admitted as

factual. That Notice to Admit, however, was not before the lower Court as part of

the original proceedings and not mentioned anywhere in the Order, to which no

objection was raised by Appellant after review, and Judgment signed by the Court.

12
 THE GREEN AMENDMENT IS INAPPLICABLE

Appellant attempts to create a private right of action pursuant to a general

Constitutional provision after first correctly arguing that the Courts should not

interfere with a SEQR determination that was well reasoned and considered at

length by a municipality. In that regard, Appellant argues that a strict scrutiny test

be applied and that the determination of the municipality should not be

automatically approved. It is respectfully submitted that the Courts have

repeatedly considered the review process of municipalities with respect to SEQR

and thus no further right exists in this case to which the “Green Amendment”

would apply. As set forth in affidavits submitted below by the Respondent’s Code

Enforcement Officer, all documents were sent to all interested parties and

agencies prior to a SEQR determination and then again to the County for a final

review prior to site plan approval. (R.445). While Appellant might not like the

fact that the other agencies neither sought further involvement nor raised any

concerns about the environmental effects of the project, it cannot be said that a

review to consider environmental effects was not undertaken.

The determination Fresh Air for the Eastside, Inc. v New York, et al, 2022

NY Slip Op 34429 (Sup Ct, Monroe County 2022) does not mandate a different

result. That action involved the operation of a landfill with its concomitant odors

affecting the air quality in the area. Therein, the Court recognized that “The

13
Landfill causes fugitive emissions ("Fugitive Emissions") of landfill gas ("Landfill

Gas"), including among other constituents, greenhouse gasses ("GHG") laced with

hazardous substances released and otherwise discharged into the air, as well as

persistent, noxious, and offensive odors ("Odors") of garbage and landfill Gas.”

Id. at *3. No such similar factual situation exists herein. There is no evidence of

air that will be unclean or water that will be polluted. Other than conclusory

accusations by Appellant, evidence is lacking as to how the environment will

allegedly be unhealthy by the creation of baseball fields. In fact, Appellant’s

allegations in the Petition refer to other issues such as “blight”, an “increased risk
I
of being a victim of crime”, an “increase in traffic” and “lack of parking” [even

though it is on the other side of Buffalo Creek and not near his home], “changes in

the quantity and quality of the groundwater”, and the effect upon the nearby

federal wetlands. (R.423). Herein, the Appellant's property is not located in a

Federal Wetland area, is outside of any 100-year floodplain (R.420), and not

located within even a half a mile from the Project area. The Appellant's property

is located in a subdivision well south of the Project area and even on the other side

of Buffalo Creek. His “marshy and swamp-like” property during periods of rain

“and for some time after the rain subsided” exists in that fashion before any plans

were even contemplated by the co-respondent. (R.142 at ¶69). The existence of

the “sump-pit and sump-pump” predates any application by Canisius. (R.142 at

14
¶70). In essence, Appellant already has, by his own admission, even though he is

outside of the floodplain, and well south of the Project area and even south of

Buffalo Creek, had water problems in his basement and on his property which is

part of a subdivision. Therefore, it cannot be argued that the proposed Project

caused any unhealthy environmental effects or damages to Appellant's property.

Several months after the Fresh Air case, a lower Court had another

opportunity to discuss the Green Amendment. In Marte v City of New York, 2023

NY Slip Op 31198 (Sup Ct, New York County 2023) the Court addressed the

effect of the amendment in a case where repeated attempts, such as exist in this

case, have been made to end a development. Therein, the Court stated:

“This case, however, poses a different question. The context in

which this case arises involves numerous other attempts to stop
the instant development. Those efforts were ultimately rejected
in February 2021, when the Appellate Division, First
Department upheld the New York City Planning Commission's
decision to approve the building applications (Tenants United
Fighting for Lower E. Side v. City of New York Dept. of City
Planning, 191 A.D.3d 548 [1st Dept 2021], lv to appeal
denied, 37 N.Y.3d 902 [2021], and lv to appeal denied sub
nom. Lower E. Side Organized Neighbors v. New York City
Planning Commn., 37 N.Y.3d 902 [2021]). Plaintiffs here do
not seek relief under the Green Amendment as part of the
initial effort to challenge a development. Instead, they seek yet
another "bite at the apple" under circumstances where every
previous request has proved unsuccessful and where, on this
record, nothing substantive has changed in the intervening
years. For that reason, the Court grants the motions to dismiss.
The Court hesitates to create a brand-new route to challenge
developments on an environmental basis, which is exactly
what plaintiffs' action would entail. SEQRA and CEQR
15
 provide substantial environmental protections and require state
and city agencies to consider all manner of factors before
approving certain projects. A Court is not the right forum to,
essentially, modify the state's environmental regulatory scheme
regarding consideration of proposals for developments-that is
the province of the legislature. Unlike the situations suggested
above (such as addressing the effects of a landfill), litigants
have little problem acquiring standing to challenge, and
sometimes stop, proposed development projects while relying
on SEQRA and CEQR as well as numerous other regulations.”
Id. at *3.

Herein, Appellant previously challenged the Canisius Project to this same Court

and the same arguments raised therein have been raised in this case and the

pending action against the Zoning Board of Appeals. The Constitutional

Amendment was not intended to give individuals multiple additional arguments

time after time in order to thwart legitimate development that has already been

carefully and fully examined under SEQRA.

APPELLANT’S PROCEDURAL ARGUMENTS LACK MERIT

Appellant’s arguments that the affirmations of counsel should not be

considered are nothing more than an attempt to avoid the evidence so raised

therein. It also ignores the fact that as the Town Attorney, and thus a public

officer by law, and the attorney present as counsel to the Town Planning Board at

meetings, Respondents’ counsel would have personal knowledge of the facts and

circumstances set forth within the affirmations. (R.474). Appellant also ignores

16
the exhibits which were attached which constituted documentary evidence

contrary to Appellant’s claims. (R.433-36). Furthermore, Appellant seeks to

avoid the affidavits of the Town Engineer (R.437-42) who must review and pass

on projects in the Town and the Code Enforcement Officer/Building Inspector

(R.443-72) who also reviews projects and works with the Planning Board with

respect to all reviews. In fact, it is the Code Enforcement Officer that files the

239-m with the County and coordinates all reviews by all other interested parties.

(R.425, 445). To argue that those papers should not be considered is

unmeritorious at best.

Appellant also argues that Respondents had no right to file a Motion to

Dismiss and instead were required to file an Answer to the proceedings. CPLR

7804(c) requires an answer to a notice of petition to be submitted at least five days

before the petition is noticed to be heard. CPLR 7804(f) requires a motion to

dismiss a petition to be submitted by the same time the answer is due. Thus, since

an answer is due five days before the notice to be heard, the motion to dismiss is

also due five days before the notice to be heard. This simple calculation for when

an article 78 motion to dismiss is due is reiterated in Harvey v New York State

Dept. of Envtl. Conservation. “A motion to dismiss in a CPLR article 78

proceeding must be made within the time allowed for an answer (CPLR 7804[f]),

which is at least five days before the return date (CPLR 7804[c]).” Matter of

17
Harvey v New York State Dept. of Envtl. Conservation, 235 AD2d 625, 625 (3d

Dept 1997).

Interestingly, CPLR 7804(c) also states that “should the body or officer fail

either to file and serve an answer or to move to dismiss, the court may either

issue a judgment in favor of the petitioner or order that an answer be submitted.”

(emphasis added) Such a statement specifically provides that the filing of an

answer or a motion to dismiss is permissible. In this case, the motion to dismiss

was timely filed more than five days prior to the scheduled return date. (R.2409).

Interestingly, Appellant’s brief recognizes the right to file a motion to dismiss in

lieu of an answer on pages 31-32. A right that he attempts to disregard elsewhere.

This was not the matter of simply supplying affidavits without an answer, but

rather, the affirmative filing of a motion to dismiss with appropriate supporting

evidence. (R.2409). For that reason, a default as suggested by Appellant was not

appropriate. Similarly, Appellant’s default arguments ignore the totality of the

litigation and the active participation by Respondents in opposing the relief

requested on multiple occasions.

Appellant also creates a misleading chronology so that he can argue that

Respondents were in default and did not serve an answer, but rather, submitted

only affidavits in response to the Petition. The original Petition was filed on July

15, 2022. (R.129). The return date as set forth by the Court was originally

18
September 28, 2023. (R.125). After the Court denied the ex-parte request for a

Temporary Restraining Order, Appellant requested that the Respondents

voluntarily agree to a stay of any construction, which was rejected. Thereafter,

Appellant filed a second Order to Show Cause on August 18, 2022 (R.370) again

seeking a Preliminary Injunction and a Temporary Restraining Order even though

the first request was still pending and the Respondents’ time to appear had not yet

expired. The return date of that second application was a week later on August

26, 2022. (R.370). Now Appellant is trying to argue that the answering affidavits

to the second motion should be disregarded and that Respondents failed to timely

submit an Answer and thus defaulted on the first motion even though the motion

to dismiss was timely as required, not by the original Order to Show Cause, but

rather, by the clear statutory language. While it is respectfully submitted that the

Court should not have granted the second Order to Show Cause seeking the same

relief as the initial Order to Show Cause which was still pending, Appellant should

not now be permitted to obtain relief based upon his own chicanery.

Appellant’s arguments also fail with respect to the second Order to Show

Cause since no new Petition was filed and Respondents were not afforded the

requisite time in which to answer. All the arguments with respect to the Rejection

of the affidavits which were in response to the second Order to Show Cause were

self-created by Appellant in an attempt to succeed without evidentiary support.

19
 Appellant’s creative discussion with respect to the default motion ignores

the fact that Respondents were not in default with respect to the initial Petition

since the motion to dismiss was filed more than five days prior to the return date

of the Petition. (R.2409). Even if the Court concluded that the Respondent’s

Motion to Dismiss was untimely, Appellant suffered no prejudice from the timing

of Respondent’s submission of the Motion, so it was still proper to be granted.

Courts have the discretion to “extend the time fixed by any statute, rule or order

for doing any act, upon such terms as may be just and upon good cause shown,

whether the application for extension is made before or after the expiration of the

time fixed.” CPLR 2004. In Harley v United Servs. Auto. Ass’n., defendant

USAA filed a motion to dismiss after the prescribed deadline, which the court

allowed, stating:

Considering the short length of USAA's delay in moving

to dismiss, the existence of a meritorious defense, the
lack of prejudice to plaintiff and plaintiff's failure to
move for a default judgment prior to USAA's motion, we
see no abuse of discretion in Supreme Court's decision to
extend the time for USAA's motion.

191 AD2d 768, 768-69 (3d Dept 1993).

Likewise, in A & J Concrete Corp. v Arker, the New York Court of Appeals

also upheld a New York Supreme Court ruling granting a party’s CPLR 2004 time

extension, stating that courts have the power to grant such extension when the

delay is not willful or lengthy, and when it does not cause any prejudice to the
20
parties. 54 NY2d 870, 872 (1981). Here, Appellant was not prejudiced by any

alleged untimeliness by the Respondent Town in submitting the Motion to

Dismiss.

Even if it could be argued that an answer was required, the multiple

submissions by the Respondents clearly indicate that Respondents had not only

actively participated in this case, but also had not defaulted with respect to an

appearance. Defaults may be appropriate if there is no response and that clearly

is not the case herein.

INJUNCTIVE RELIEF WAS CORRECTLY REJECTED

Appellant summarily concludes that he met all of the four tests required

prior to the grant of a Preliminary Injunction and, before that, a Temporary

Restraining Order. What is not supported by his position, however, is a

conclusion that there was the likelihood of ultimate success on the merits or that

the balance of equities was in Appellant’s favor. What is further relevant, but not

discussed by Appellant, is, it is respectfully submitted, that this is moot at this

juncture since the fields have been constructed, dedicated, and used by the school.

To therefore argue as has been done in Appellant’s brief on page 27 that co-

Respondent will “suffer no discernible harm” is disingenuous.

21
 Appellant advances no argument to show that there was a likelihood of

ultimate success or how the equities were balanced in his favor. Appellant simply

opines that the Court could have granted a Preliminary Injunction without

providing any basis for doing so. The argument that the status quo trumps all

ignores the cost to the co-Respondent both in terms of construction costs and the

loss of educational opportunities for the students just coming back from the

pandemic when no school activities occurred. It also ignores the fact that this is

not the first time that Appellant has sought to stop the construction of athletic

fields at that location with this Court ultimately rejecting the very same arguments

raised herein by Appellant.

Appellant does not state, and indeed cannot allege, that his property has

been damaged by virtue of any action by either this Respondent or the co-

respondent Canisius High School. It cannot be shown because nothing has

happened that is any different than what existed prior to any construction.

Appellant is seeking the Court to issue an anticipatory ruling when no justiciable

controversy exists. Appellant has not alleged that the Canisius athletic fields that

already exist at the Project area have damaged his property, only that if the

baseball fields were allowed to be built, it will negatively impact the environment

on his property and he will be compelled to expend money. (R.2396-97). Other

than his bland, unsubstantiated statements, there is no evidence that either the

22
property will be affected or that any damages will be definitively and proximately

caused by any Respondent.

What is absolutely missing, however, from any of the papers submitted by

the Appellant is any evidence supporting his bald allegations. Appellant alleges a

great deal about the need for injunctive relief, but those conclusory statements are

unsupported by any expert reports. What is included are studies and documents

galore about the area in general without any specific reference to Appellant’s

property or the development by the co-Respondent, Canisius. Many of the

documents are fifteen or more years old and it is clear that Appellant is arguing

that the Canisius project from years ago should never have been approved. The

time to challenge that has long since expired and something that the Appellant

already tried to argue in a prior action. How many bites at the same apple will he

be permitted to take?

RESPONDENTS’ PROCEDURE WAS PROPER

Appellant argues several alleged procedural errors on the part of the

Respondents, Town of West Seneca and Planning Board. Appellant claims that

the Planning Board violated General Construction Law § 41 by acting as the lead

agency on the project for SEQRA purposes. Appellant’s argument is

unmeritorious. Appellant incorrectly argues that the Planning Board could not

23
act as the lead agency for the project without voting to do so. 6 NYCRR

617.6(b)(1), titled “Establishing lead agency,” says that “When a single agency is

involved, that agency will be the lead agency when it proposes to undertake, fund

or approve a Type I or Unlisted action that does not involve another agency.”

This project meets the definition of a Type I action under 6 NYCRR

617.4(b)(6)(i) as “a project or action that involves the physical alteration of 10

acres.” 6 NYCRR 617.2(c) states that “agency” simply means “a state or local

agency.” The Planning Board is the only agency involved in this project. Thus,

per 6 NYCRR 617.6(b)(1), the Planning Board must be the lead agency for the

project.

Appellant's argument that the Planning Board is an illegitimate lead agency

because they did not take a vote to appoint a lead agency for the project lacks

merit and is not supported by statute or case law. The statutes cited by Appellant

say nothing of a voting requirement to appoint a lead agency.

Appellant also argues that the Code Enforcement Officer, on behalf of the

Planning Board and the individual responsible for submission of all documents to

related agencies and as the individual to whom filings are made, lacks the

authority to do his job. Such a statement lacks any credibility. Relatedly,

Appellant argues without any evidence in support of his statements, that the

Town did not supply the documents to the appropriate agencies and the County

24
contrary to the sworn affidavit of the Code Enforcement Officer. (R.425).

Appellant has no personal knowledge of what was done and his contrary

statements cannot be accepted as fact simply because he has made them. All of

the documents submitted to the County were supplied to the Court along with

separate affidavits from the Code Enforcement Officer attesting to the fact that

they were the documents submitted over a span of sixteen months. (R.2399).

That includes the affidavit in response to the motion for issuance of a subpoena

duces tecum to the County of Erie and the documents from the flash drive that

was submitted to the Court. How these other agencies keep documents or

respond to FOIL requests is not under the control of this Respondent. What is

clear is that the County of Erie responded on multiple occasions to the 239-m

submission by Respondents. (R.462-65).

Appellant also falsely states in paragraph 163 of the Petition (R.161) that

the Planning Board “acted without jurisdiction in granting conditional site plan

approval on June 9, 2022” even though he was present at that meeting and the

Planning Board did not give site plan approval, but rather, only dealt with the

SEQR findings which were extensively placed in the record. (R.425). As set

forth in the affidavit from the Code Enforcement Officer, site plan approval was

not given until over a month later and after a third referral under GML 239-m

25
was made to the County of Erie. (R.445). This is simply one example of

Appellant’s creativity with the facts.

More specifically, Appellant raises multiple causes of action in the Petition

with respect to the Town of West Seneca and the Planning Board. (R.424). In the

first cause of action, Appellant argues that a quorum was not present for purposes

of the meetings. (R.157-59 at ¶¶135-44). Such a statement, however, is in direct

contradiction to the meeting minutes which clearly show that a majority of the

Board was present for each meeting. (R.223, 231, 237, 245, 258, 268, 279, 284,

467). Furthermore, as set forth in the affidavit of the Code Enforcement Officer,

even though every possible agency and other body that might have challenged a

determination of lead agency status (e.g., Army Corps of Engineers, County of

Erie, Department of Environmental Conservation, SHPO, etc.) were notified of

the proceedings, not one other agency challenged either the determination or the

submission by Respondent as lead agency. (R.445). As an individual, that right to

act as lead agency does not fall to Appellant.

Furthermore, all of Appellant’s letters were recognized and considered with

all of the documents he supplied. All of the agencies were notified and some

either responded or chose not to respond on the basis that they had no comments

with regard to the project. (R.426). To therefore argue that a hard look was not

undertaken by the Respondent Planning Board is simply disingenuous on the part

26
of Appellant. What is really the issue is that the Respondent simply did not agree

with Appellant after careful study.

Appellant argues that the property should be re-zoned or a use variance

obtained prior to the approval of a site plan. The basis for this claim is peculiar

since the rest of the property owned by Canisius has been previously approved

for and consistently used as athletic fields. How the addition of baseball fields to

the property is different from its current and rather consistent use is puzzling at

best. This is again another attempt by Appellant to raise an extremely late

challenge to what was done over a decade ago and already disposed of by the

Appellate Division. In an attempt to ignore that fact, Appellant incorrectly argues

that the addition of the baseball fields is the expansion of a non-conforming use

which is not permitted under the Town Code. While the Planning Board did

consider the addition of the fields, the Code Enforcement Officer interpreted the

code as allowing this use especially since the section of the code upon which

Appellant attempts to rely deals with the square footage of a building which

simply does not exist with the Canisius plans. In essence, Appellant seeks to

reargue the determination of the Appellate Division rather than seeking a further

review by the Court of Appeals, which, of course, he cannot since the appellate

decision was so long ago.

27
 Even more interesting and relevant, but not mentioned by Appellant, is the

fact that Appellant has a separate proceeding which was filed against the Zoning

Board of Appeals on precisely the same issue under Index No. 802201/2023

which is still pending. Not only does Appellant wish to re-litigate the same issue

from fifteen years ago, but he wishes to do it in two separate proceedings at the

same time. Questions of interpretation of the Code rest first with the Code

Enforcement Officer and questions of interpretation are sought from the Zoning

Board of Appeals only upon a request of the applicant (i.e., Canisius) in the event

of a denial of action by the CEO or at the request of the CEO if there is a question

of the meaning of certain language. Appellant does not live within five hundred

feet of the property in question by virtue of his own admission in the papers and

is not an abutting landowner to the property. The Court of Appeals has addressed

this issue in Matter of Sun-Brite Car Wash, Inc. v Bd. of Zoning & Appeals of

Town of N. Hempstead, 69 NY2d 406 (1987) and rejected the right of just anyone

to go to the ZBA on a variance basis. “A property holder in nearby proximity to

premises that are the subject of a zoning determination may have standing to seek

judicial review without pleading and proving special damage, because adverse

effect or aggrievement can be inferred from the proximity.” Id. at 409-10. What

constitutes proximity, however, is another matter. The Court of Appeals has

suggested that it is five hundred (500) feet, not the approximately 2500’ distance

28
that applies to Appellants’ residence. “Petitioner, for example, may be so far

from the subject property that the effect of the proposed change is no different

from that suffered by the public generally (cf., Brechner v. Incorporated Vil. of

Lake Success, 23 Misc.2d 159, 161, 201 N.Y.S.2d 254 [Meyer, J.]; 3 Rathkopf,

op. cit. § 43.04; ALI Model Land Development Code §§ 9–103, 9–104 [Proposed

Official Draft 1975] [property owner within 500 feet has standing].” Id. at 414.

What Appellant is now trying to do is raise a variance argument through the

Planning Board proceeding which is not permissible. Simply, Appellant is not

within the zone of interest for this challenge thereby negating that he is an

“aggrieved party.” Challenges to zoning determinations may only be made by

“aggrieved” persons. See, Town Law § 267-c(1); Little Joseph Realty v Town of

Babylon, 41 NY2d 738, 741 (1977).

Appellant also erroneously claims that Respondents violated Article 7 of

Public Officers Law. Appellant argues that the Planning Board violated the Open

Meetings Law not by having a closed meeting, but rather, by allegedly not having

all documents available for public review at least twenty-four hours in advance of

the meeting. It should be noted that many documents are received just prior to

the meeting thereby negating their placement on the website and other documents

are simply physically too large to put on the website. In the case of the Canisius

project, most of the documents had been previously submitted and made part of

29
the record and available for public review from prior Board meetings. Many of

these documents were submitted by Appellant. It is not a question of whether the

public was informed of the proceedings which took place over the course of over

a year. For Appellant, it was simply a matter of trying to raise an objection after

the fact for purposes of this current challenge.

While it is conceded that the law does not require a member of the public

to formally request the documents, it is also reasonable that it cannot be used as a

“gotcha” moment as Appellant is attempting to do. If Appellant had bothered to

come to the meetings over a span of sixteen months (other than the meeting of

June 9th) and ask for documents or even raise the issue of the timeliness of their

inclusion on the website anytime in the sixteen months between when Canisius

first came to the Planning Board until site plan approval was given, then he could

have received duplicate copies of the same records which were reviewed over a

period of months.

This is not a situation where a decision was made the same night it was

first presented, but rather something that was debated and discussed and reviewed

for well over a year and at multiple meetings where the public, except for

Appellant, was present. The purpose of the statute is to provide transparency and

an opportunity for the public to hear and comment on matters that will be

discussed. Appellant cannot rationally argue that that did not occur and that he

30
had no opportunity to present his case before the Planning Board. The sheer

multitude of the letters and documents he sent in belies his argument now.

(R.978-2239). Appellant clearly knew what was going on by reviewing the

Planning Board minutes which are posted online, otherwise he would not have

known what to address with his submissions. The spirit, if not the precise

method, of the statute was met.

Appellant also ignores the part of the statute that states “to the extent

practicable.” In light of the size and magnitude of the documents involved in this

matter, inclusion on the website might not have been possible for every meeting.

Nevertheless, the documents were available for the public at the meetings both in

written form and on the screen used for presentations in the room. Therefore, for

Appellant to now argue that he was denied meaningful participation in the

process is disingenuous especially in light of the documents and arguments he

submitted over the same sixteen-month period and the Court filings that he made

in the prior proceeding before Justice Siwek.

Public Officers Law, and specifically §103(e), was not violated by not

posting the response from the Erie County Department of Planning on

Respondents’ website, and by allegedly not providing Appellant with all the

SEQRA related materials for this project. Appellant's argument has no merit

because Public Officers Law §103(e) does not require the Erie County

31
Department of Planning response to be posted online, and Appellant was

provided with all the SEQRA related material for this project. §103(e) of Public

Officers Law reads in its entirety as follows:

Agency records available to the public pursuant to

article six of this chapter, as well as any proposed
resolution, law, rule, regulation, policy or any
amendment thereto, that is scheduled to be the subject
of discussion by a public body during an open meeting
shall be made available, upon request therefor, to the
extent practicable at least twenty-four hours prior to the
meeting during which the records will be discussed.
Copies of such records may be made available for a
reasonable fee, determined in the same manner as
provided therefor in article six of this chapter. If the
agency in which a public body functions maintains a
regularly and routinely updated website and utilizes a
high speed internet connection, such records shall be
posted on the website to the extent practicable at least
twenty-four hours prior to the meeting. An agency may,
but shall not be required to, expend additional moneys
to implement the provisions of this subdivision.

In that regard, the Planning Board does maintain a regularly and routinely

updated website, and as such, posts documents prior to the meetings. Second,

§103(e) only requires that agencies that maintain a regularly and routinely

updated website post records on their website, “upon request.” Here, the

response was never requested, and as such, the Planning Board would not be

required to post the response on its website although documents are posted prior

to meetings. Next, §103(e) only requires that agencies that maintain a regularly

and routinely updated website post requested records “to the extent practicable.”
32
It is not practicable for the Planning Board to post every single document related

to every project with which the Planning Board is involved onto a website

especially documents only recently submitted or too large to post easily.

Interestingly, Appellant does not claim that he could not get access to the

document or that access was denied by the Town in response to a FOIL request,

many of which he made. He also does not dispute the sixteen month review

period or that his documents were neither reviewed nor included in the record.

His argument is a generality without actual support.

As a practical matter, however, the Planning Board issued a SEQR

determination only after a careful and thorough review of the matter sixteen

months after the request was first filed by Canisius, and no site plan approval was

granted until more than a month later and only after the County had received the

information for the project and responded for a third time. Therefore, as a factual

matter, the SEQR process was completed prior to a third submission to the

County Department of Environment and Planning and over a month prior to the

Planning Board making a site plan decision. While the County did issue a

statement regarding the project as part of the third submission, even if they had

not, since more than thirty (30) days had elapsed from the time of the submission

to the County until the site plan review and determination of the Planning Board,

the actions of the Planning Board were proper.

33
 In attacking the SEQR determination of Respondents, Appellant both in the

Record and in his brief, raises references to a number of other areas in the Town

in an attempt to justify his position. Most troubling, however, is the Appellant's

attempts to equate other flooding or storm water sewer issues elsewhere in the

Town to issues either involving him or something which may occur. While

Appellant admits that “it is unknown what role, if any, the groundwater flooding

issue contributed to these events,” (R.139 at ¶ 60) he carefully and somewhat

misleadingly tries to equate his property to a problem that existed elsewhere,

again without any substantiation beyond simply including language from some

unrelated reports. What Appellant conveniently leaves out is the fact that he does

not live in the Lexington Green area nor does his property abut Buffalo Creek or

exist anywhere near the Project area. Appellant seeks to obtain a decision based

upon speculation about something that has not happened to him and attaches

unrelated studies in an attempt to justify his Petition. (R.2406).

CONCLUSION

Based upon the forgoing, it is respectfully urged that the Court affirm the

decision of the Hon. Mark J. Grisanti, J.S.C. together with such other and further

relief that the Court may deem just and proper.

34
Dated: October 2, 2023
Respectfully Submitted,
GRECO 1RAPP, PLLC

Chri . Tr J3P, Esq.

Joseph reco Trapp, Esq.
Nichola A. Gengo, Esq.
Attorneys for Respondents-Respondents
1700 Rand Building
14 Lafayette Square
Buffalo, New York 14203
Telephone: (716) 856-5800

35
 PRINTING SPECIFICATIONS STATEMENT

I hereby certify pursuant to 22 NYCRR 1250.80) that the foregoing brief was

prepared on a computer using Microsoft Word.

Type. A proportionally spaced typeface was used, as follows:

Name of typeface: Times New Roman

Point size: 14pt

Line spacing: Double

Word Count. The total number of words in this brief, inclusive of point headings

and footnotes and exclusive of pages containing the table of contents, table of

citations, proof of service and this Statement is 8,336.