[*1] Waldbaum, Inc. v Incorporated Vil. of Great Neck NY Slip Op (U) [10 Misc 3d (A)] Decided on January 9, Supreme Court, Nassau County Bucaria, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § The U.S. Bankruptcy Court for the Eastern District of Missouri confirmed a chapter 11 plan in the first Patriot Coal bankruptcy on December 17, , following a new capital infusion of $ million and a settlement with its former parent company of claims that subsidiary spinoffs violated the Employee Retirement Income Security Act. Legacy. Bill Boehm BU Business Law – Commercial 04/14/ Case Study # 4: United States v. Chestman, F.2d (2d Cir. ) Issue: Susan Waldbaum was a niece of the president and controlling shareholder of Waldbaum, Inc. Susan’s mother (the president’s sister) told Susan that the company was going to be sold at a favorable price and that a tender offer was soon to be made.
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Matter of Town of Candor v. City of New York, Misc 2d , Although the Municipal Respondents correctly cite the Second Department's decision in Aldrich v. Pattison for the principle that "[t]he doctrine of exhaustion of administrative remedies requires litigants to address their complaints initially to administrative tribunals, rather than to the courts, and Pattison, supra at , where environmental matters are involved, the Respondents have failed to take into consideration the Court of Appeals subsequent decision in Jackson v.
In Jackson, the petitioners argued, among other things, that the lead agency's environmental review of the proposed action was improper because the lead agency failed to consider the environmental impact of the proposed action on archaeological resources and a water tunnel. See id at The lead agency countered by arguing that the petitioner's archaeology and water tunnel claims were barred by the doctrine of exhaustion of remedies because the petitioners did not raise them during the SEQRA review process before the lead agency.
The Court of Appeals disagreed with the lead agency, finding that the doctrine of exhaustion of administrative remedies did not foreclose judicial review.
Instead, the Court found that the petitioners' failure to raise the issues at the administrative level was merely a factor to be considered in determining whether the lead agency acted reasonably in failing to consider the issues in its environmental review of the proposed action. Thus, even assuming that the Petitioner failed to raise its SEQRA objections during the proceedings before the Municipal respondents, such a failure does not foreclose judicial review of those objections herein.
Therefore, this Court is left to determine whether the Municipal Respondents acted reasonably in failing to consider the numerous environmental issues associated with the rezoning. Closure of the Sewage Treatment Plants.
As stated above, to the extent that this Court has determined that the Municipal Respondents improperly segmented the rezoning and the sewage diversion projects, based upon the papers submitted for this Court' s consideration, including the Expert Affidavits of Theresa Elkowitz and David Stolman, submitted in support and in opposition to the within Article 78 petition, respectively, this Court finds that the Village in fact failed to take a "hard look" at the environmental impacts of closing its sewage treatment plants.
For example, this Court is not convinced that the Board of Trustees, as the lead agency, took a "hard look" at the environmental impacts of having to excavate streets to lay approximately 6. It is abundantly clear that during the SEQRA Review Process, the noxious odors emanating from the existing sewage treatment plants and their negative impact on existing, residential houses in the vicinity of plants were discussed at several hearings.
Water Quality of Long Island Sound. At the public hearings, the Village admitted that its sewage treatment plants are functionally obsolete and need to be rebuilt in order to comply with the federal and state environmental standards. During its environmental review, however, the Village failed to consider the environmental impacts on the water quality of Long Island Sound of increased discharges of sewage from its obsolete plants that would be caused by the sewage from the new development envisioned by the rezoning.
Soil and Groundwater Contamination in the Rezoned Area. It is undisputed that in the January DGEIS, the Village Planner acknowledged that it was in receipt of environmental reports regarding the Petitioner's vacant property and that said reports concluded that "portions of the site contain pollution levels that exceed NYSDEC soil clean up objectives,' and that these isolated hot spots' should be removed in accordance with NYSDEC guidelines.
See Exhibit 13 at p. See Exhibit 24 at p. However, there is no indication that the Village took any further action to identify and clean up the contamination in the rezoned area. It simply rezoned the properties without considering whether the residential standards had been met. As part of its long range plan for the redevelopment of the Industrial District, the Village sought to dredge Manhasset Bay and use the dredge spoils to extend the shoreline of the industrial district.
However, in a letter dated March 31, , the DEC specifically informed the Village that the construction of a public promenade along the shoreline would require a DEC tidal wetlands permit. Nonetheless, without having evaluated the impact of extending the shoreline on existing tidal wetlands, the Village adopted the rezoning measures challenged herein.
Based upon the foregoing, this Court finds that the Petitioners have adequately demonstrated that the Village failed to take a "hard look" at several key areas of environmental concern to the rezoning. Pursuant to SEQRA, a Supplemental Environmental Impact Statement SEIS may be required for significant environmental impacts not addressed or inadequately addressed in the EIS arising from: I changes in the proposed project; ii newly discovered information; and iii a change in circumstances related to the proposed project.
On February 17, and March 1, , after the adoption of the FGEIS but before the adoption of the rezoning, Petitioner presented the Village with new information regarding significant environmental impacts that were not addressed or were inadequately addressed in the FGEIS, including engaging in improper segmentation and failure to take the requisite "hard look" at the proposed project.
Clearly, a failure to take the requisite "hard look" at the nature and extent of its environmental review and the failure to consider the environmental impacts of permitting high and medium density residential development in close proximity to existing sewage treatment plants are "importan[t] and relevan[t]" pieces of information that was omitted from the EIS in its "present state.
The Village, however, refused to consider the issues raised by the Petitioner and it failed to determine whether a SGEIS was necessary to address them. Failing to adhere to procedural requirements. The Court of Appeals in King v.
Specifically, the Court stated:. See, King v. Saratoga Board of Supervisors, 89 NY2d , As a result, the instant proceeding by Petitioner, Waldbaum, seeking a judgment vacating and annulling Local Law No.
Enter your email. Waldbaum, Inc. As corrected in part through February 27, ; it will not be published in the printed Official Reports. Bucaria, J. In response, the Village Attorney stated: The Mayor had previously indicated that the diversion project is separate and apart from the rezoning, this hearing has to do with rezoning.
The diversion project is not the subject of tonight's public hearing. There will be public hearings with regard to the diversion project, this is not such a hearing. The Mayor has indicated that the practicality of the rezoning, if the diversion project does not go through, will probably make the rezoning impractical, but this hearing tonight is not with regard to the diversion project, it is solely with regard to the rezoning. See id at page 6. One Village resident at the hearing voiced his outrage at the Village's refusal to discuss the sewer diversion in connection with the rezoning, stating as follows: On the subject of the rezoning, I would demand that a full environmental impact study be done after the requisite [DGEIS] for the rezoning, because the Mayor has made it abundantly clear, many times, that the rezoning hinges absolutely on the diversion.
Mayor - - I'm making a comment, I'm not asking a question, I'm making a comment. You needn't look to your legal beagle here for advice. You have said this many times, and I am going to hold you to that, that you must consider the diversion because of your statements in public. And so I am demanding that full [EIS] be done that will cover the rezoning and the diversion that you have, yourself, many times, said is absolutely essential for the rezoning.
In addition to the procedural requirements, SEQRA imposes substantive requirements which include listing the various types of information that must be included in the EIS, a description of the proposed action with an assessment of its environmental impact and any unavoidable adverse environmental effects ECL [a]-[c] and mitigation measures proposed to minimize the environmental impact ECL [f].
It must also prepare a written statement of the facts and conclusions in the FEIS and comments relied upon and the social, economic and other factors and standards which form the basis of its decision 6 NYCRR Put differently, the agency must take a sufficiently "hard look" at the proposal before making its final determination and must set forth a reasoned elaboration for its determination see, Akpan v.
Koch, 75 NY2d , , supra ; Matter of Jackson v. Where an agency determines to reject a proposed project, it must likewise take a sufficiently "hard look" and set forth a reasoned elaboration for its determination see, Matter of Jackson v. As we have only recently observed, "[a]n agency's compliance with its substantive SEQRA obligations is governed by a rule of reason and the extent to which particular environmental factors are to be considered varies in accordance with the circumstances and nature of particular proposals" Akpan v.
Koch, 75 NY2d , , supra ; see also, Matter of Jackson v. Department of Transp. The WEOK Court defined "substantial evidence" as: "[b]eing such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact' Gramatan Ave. By the s, the company had nearly 16, stores. The next four largest unsecured creditors include McKesson Drug Co.
Many of those unions have bumping rights that the company has described as a barrier to reducing costs. The business is still able to remain in operation during this process, which can greatly help the business in regaining profits. To emerge from bankruptcy, the business must gain the approval of the court and its creditors. The financing was approved by the bankruptcy court during the filing.
This is not the first time the company has filed for bankruptcy. In the company filed for Chapter Emerging in , it seems the company has failed to find itself on a sustainable path.
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