Appendix — Salvador v. Lake George Park Commission
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Supreme Caurt, U.S.
FILED
/ fe se U SEP - 3 2009
No. OFFICE OF THE CLERK
IN THE
Supreme Court of the United
States
JOHN SALVADOR, JR. and KATHLEEN A.
SALVADOR,
Petitioners,
v.
ADIRONDACK PARK AGENCY OF THE STATE OF
NEW YORK,
THE LAKE GEORGE PARK COMMISSION, et al,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES OF APPEALS
FOR THE SECOND CIRCUIT
APPENDIX - VOLUME Iil
Madeline Sheila Galvin
Counsel of Record
c/o Galvin and Morgan
217 Delaware Avenue
Delmar, New York 12054
(518) 439-7734
Attorneys for Petitioners
ait
299 a
TABLE OF CONTENTS
VOLUME I:
UNITED STATES CONSTITUTION,
FE SAME Reh rAS eR eee ube eed oes
UNITED STATES CONSTITUTIONAL
PERT TPONEEEE Sivcevesesccescsccivecsvsrs
FUE 65k IA Chek Miu wr ne ehesehcawnens
ADA ACCESSIBILITY GUIDELINES FOR
BUILDINGS AND FACILITIES ............
VOLUME II:
ADA ACCESSIBILITY GUIDELINES FOR
BUILDINGS AND FACILITIES, cont .......
CERTIFICATION OF STATE AND LOCAL
PEE Foc cnsiseieceiscscesewe
300 a
APPLICABLE LAWS, RULES AND REGULATIONS;
LEGISLATIVE HISTORY; PLAINTIFFS'
COMPLIANCEKND PERMITS RECEIVED
112. Upon information and belief, during the 1960
session of the New York State Legislature, certain legislation
was proposed for the purpose of creating a Park
Commission for Lake George.
113. Upon information and belief, the legislation
proposed in the 1960 Legislative session did not pass.
114. Upon information and belief, legislation
creating a Commission for the Lake George area again was
introduced in the 1961 session of the New York State
Legislature.
115. Upon information and belief, said legislation
passed and became Chapter 454 of the Laws of 1961.
116. Upon information and belief, the stated
legislative intent of said Chapter was to preserve and to
develop recreational facilities for "the people".
117. Upon information and belief, said legislation
also established "zones".
118. Upon information and belief, said zones were to
be included within the physical boundaries of an area which
was undefined in said legislation.
119. Upon information and belief, nowhere in said
Chapter or previously was a "park" defined.
120. Upon information and belief, in creating the
Lake George Park Commission, the powers of such entity
related to the designation of the proposed non-commercial
"zones".
121. Upon information and belief, contained in the
SS NS Ra
301 a
Bill Jacket for Chapter 454 of the Laws of 1961, L. Judson
Morhouse, hereinafter referred to as "Morhouse", in his then
capacity as Chairman of the New York State Republican
Committee, wrote by Memorandum dated January 25, 1961
to Robert MacCrate stating Morhouse's belief that the
method of "zoning", as set forth in Chapter 454 of the Laws
of 1961, was "one of the only ways" to achieve the desired
regulation of the Lake George area.
122. Upon information and belief, also included in
said Bill Jacket was a copy of a letter from Morhouse to
Assemblyman R. Wayne Pomeroy referring to said bill as
"my baby".
123. Upon information and belief, an typewritten
paragraph titled MORHOUSE PLAN and captioned as an
excerpt from Adirondack Sportsman by Bill Roden also is
contained in the Bill Jacket.
124. Upon information and belief, yet another letter
from Morhouse, this dated March 9, 1961, and addressed to
then Governor Nelson A. Rockefeller, supported the "final
version" of said bill.
125. Upon information and belief, also contained in
said Bill Jacket was a newspaper clipping noted as
purportedly having been taken from the Sunday, March 28,
1961 Albany Times-Union, which pointed out that
Morhouse, described as the "moving force behind" what
became Chapter 454 of the Laws of 1961, owned a home
located on Lake George on the shore outside Ticonderoga.
126. Upon information and belief, at some time
thereafter Morhouse became the Chairman of the
Commission as established by Chapter 454 of the Laws of
1961. 127. Upon information and belief, a clear statement
of opposition to Chapter 454 of the Laws of 1961 was set
forth in a formal Resolution of the Town of Queensbury,
formally adopted by the Town Board of that Town.
302 a
128. Upon information and belief, said Town was
and is directly impacted by such legislation.
129. Upon information and belief, the Town of
Queensbury specifically objected top the approval of what
became Chapter 454 of the Laws of 1961 in part on the
grounds that ". . . the powers and duties of the Commission
as set forth in the bill infringe upon the power of the Town t
o [sic.] regulate the use of property in the Town of
Queensbury in the area described in the bill."
130. Upon information and belief, based upon the
content of said Resolution of the Town of Queensbury was
sent by said Town to Assemblyman Richard Bartlett and
Senator Eustice Pain, the two (2) elected representative
whose areas of representation included the Town of
Queensbury.
131. Upon information and belief, the State Council
of Parks, a part of the Division of Parks within the .
Conservation Department, by letter dated April 7, 1961, and
included in the above mentioned Bill Jacket, also opposed
the approval of what became Chapter 454 of the Laws of
1961.
132. Upon information and belief, the zones and
zone concept set forth in Chapter 454 of the Laws of 1961
was altered on two (2) occasions by legislative enactments
following the original 1961 Chapter Law.
133. Upon information and belief, Defendant DEC
derived legislative authority with respect to Lake George by
regulation 6 NYCRR Part 646 dated July 3, 1981.
134. Upon information and belief, pursuant to and
by the exercise of such apparent authority legislatively
granted and delegated to Defendant DEC as a sub-unit of
the Executive branch of New York State government, by
ECL 3-0301.2, ECL 9-0105.3 and 43-0107.5 (since recodified
och nai tet Selena
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aN a ll A Sn HEM APIA PAN ch ANC Ie peel tea
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as 43-0107.19) DEC required that owners of marina facilities
situated on Lake George were required to complete an
application for a non-revocable Permit to Operate a Marina
“on Lake George”.
135. Upon information and belief, as part of the
implementation of said requirement Defendant DEC issued
a form bearing issuance date in lower left hand corner of
"8/81" for that purpose.
136. Upon information and belief, pursuant to the
requirements established by DEC each such applicant for
the above mentioned Marina permit was to select and
specify from a DEC predetermined limited menu of
"marina" activities being provided by the entity making
application.
137. Upon information and belief, each such
responding applicant was required to respond in a timely
manner to the DEC to specific questions with respect
thereto.
138. Plaintiffs responded to and complied with all
the requirements of 6 NYCRR 646 (July 3, 1981).
139. By letter signed by Defendant White then
Secretary to Defendant LGpC, dated December 15, 1981,
DEC, acknowledged receipt of Plaintiffs' application to
operate a marina on Lake George.
140. By notice issued December 16, 1981, the DEC by
its agent, White, distributed notification of Plaintiffs'
application to other persons and entities, identifying the
Salvadors' "Dunham's Bay Lodge" as an "Existing Marina".
141. The above mentioned Notification included
notification to Defendant Town of the DEC's intent to issue a
Permit to Operate a Marina to Plaintiffs “on Lake George” in
the DEC Lake George Recreation Zone (6 NYCRR Part
190.27), as a pre-existing non-conforming use within a
304 a
Residential Zone of Defendant Town and within a Vessel
Regulation Zone of Defendant Town.
142. Thereafter by Permit Number 50-81-0071 MA,
dated March 22, 1982, and duly executed by Permit
Administrator Richard A. Wild, the DEC issued to Plaintiffs
a non-revocable Marina Permit pursuant to Article 9, Title 1
of the Environmental Conservation Law and the provisions
of 6 NYCRR Part 646.
143. Said Marina Permit Application specifically
affirmed that the services provided included the sale or
rental of watercraft, the sale or rental of marine products,
the rental, lease or accommodation for boats and other, etc.,
75 parking spaces for vehicles, provision of trash receptacles
and rest room facilities, as well as establishing 67 boat slips
and one mooring as the vessel berthing capacity, all being
maintained and operated at Plaintiffs' facility. (Other
activities include boat storage, fuel dispensing, etc.)
144. The resulting non-revocable Marina Permit,
incorporating the provisions of the application, recited only
in part inclusion-among other things of "Sale or rental of
marine products, services and dock space for 67 boats."
145. At this time, the term watercraft as used within
the existing 6 NYCRR Part 646 regulation language was
encompassed in the defined term "vessel", stating
specifically"
Vessel: means every description of water
craft, other than a seaplane, used or capable
of being used as a means of transportation on
water.
146. The above mentioned definition did not
differentiate in any way among the various types of
available watercraft, including but not limited to motorized
boats, canoes, jetskiis, PWCs of any type or kind, or
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sailboats.
147. Plaintiffs, in compliance with their application
and with the terms and conditions of the duly issued non-
revocable Marina Permit, continuously conducted business
at the site specified therein from that time forward to and
including the date hereof.
148. Plaintiffs conducted said business in reliance
upon the validity of said non-revocable permit and the
authority of the DEC to issue such non-revocable Marina
Permit as an extension of the legislative grant of authority to
the DEC.
149. The regulations set forth in 6 NYCRR Part 646 —-—_——
dated July 3, 1981, established the Lake George Park
Recreational Zone Regulations operating on the Lake
George Recreation Zone. (6 NYCRR Part 190.27)
150. Defendant DEC's regulations thereby required
two (2) separate and different applications, one (1) for the
registration of legally pre-existing wharfs and one (1) for the
continued operation of a marina.
151. Plaintiffs duly complied with both of the above
requirements.
152. The requirement with respect to wharfs,
established by Defendant DEC, pursuant to 6 NYCRR Part
646, also required registration of "wharfs legally in existence
on Lake George prior to the effective date of the Lake
George Recreational Zone Regulation".
153. The provisions of 6 NYCRR Part 646 (July 3,
1981) were promulgated as the Lake George Park Recreation
Zone Regulations.
154. The Lake George Recreation Zone did not and
does not include private lands.
155. The definition of the "Lake George park" did
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and does include within its scope private lands.
156. There exists a clear differentiation between the
area and property encompassed by the Lake George
Recreation Zone and the Lake seed park as set forth and
specified by statute.
157. Plaintiffs also duly and timely complied with
the requirements of the Lake George Recreational Zone
Regulations and by registration form dated November 14,
1981, duly registered their existing wharfs.
158. Defendant DEC acknowledged Plaintiffs' above
mentioned wharf registration and issued a confirming letter
on April 1, 1982.
159. The Certificate of Registration of said wharfs
duly executed by Richard A. Wild was not issued to
Plaintiffs until October 14, 1982.
160. In a letter of Charles Hawley letter dated April
1, 1982, at the time at which Hawley as the Chairman of
Defendant LGpC, advised that new construction would
require a permit from Defendant DEC.
161. Plaintiffs completed all previously DEC
authorized wharf construction in its entirety prior to April 1,
1982, the date of the above mentioned Hawley letter.
162. Defendant LGpC was created as an
"Independent Agency within the Department", referring to
the DEC, pursuant to Chapter 454 of the Laws of 1961.
163. Since the original LGpC entity lacked
legislatively granted authority to act, starting in 1962, with
the enactment of Chapter 794 of the Laws of 1962, and
continuing forward to the present date, Defendant LGpC
obtained expansion of the legislative grant of authority
given to it.
164. With the reorganization of Defendant DEC in
PLEA AA wT Rha 0 AE BI AME me Me ily
I a nk Se ee
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1972 and the recodification of Article 43 of the
Environmental Conservation Law, hereinafter referred to as
the "ECL", to include ECL section 43-0117, entitled the "Lake
George park Commission", the powers of Defendant LGpC
again were expanded.
165. In 1987, with the enactment of Chapter 617 of
the Laws of 1987, amending only the Environmental
Conservation Law, the Navigation Law, the Vehicle and
Traffic Law, and purportedly amending the State Finance
Law, the Lake George Park Commission Trust Fund was
attempted to be created.
166. Chapter 617 of the Laws of 1987 effectively and
substantially impacted numerous areas of regulatory
authority not previously related to the scope of legislatively
delegated authority of Defendant LGpC.
167. Chapter 617 of the Laws of 1987 expanded the
authority of Defendant LGpC to grant to Defendant LGpC
powers of zoning regulation and taxation and purportedly
established Defendant Trust Fund.
168. Chapter 617 of the Laws of 1987 gave an
expansive grant of power and authority to Defendant LGpc.
169. Under the provision of that Chapter, Defendant
LGpC even obtained police powers under the auspices of
the Vehicle and Traffic law and the Criminal Procedure Law
170. Chapter 617 of the Law of 1987 with the grant of
police powers to Defendant LGpC authorized the arming of
Defendant LGpC's employees and agents as Peace Officers.
171. Between Plaintiffs' 1981 application for a
Marina Permit with the subsequent issuance of a Marina
Permit to Plaintiffs by Defendant DEC, Plaintiffs duly
complied with all applicable laws, rules and regulations
with respect to their commercial operation on their private
308 a
lands and to the extent their operation was on public land,
and continue to do so to the date hereof.
172. During the period following the initial grant of
authority to Defendant LGpC in the 1987 legislative
enactment, Defendant LGpC filed regulations under Subpart
646-2 of Chapter IX, Independent Agencies Within the
Department section of the NYCRR relating to Defendant
DEC.
173. Said regulations were created with respect to
registration of "recreational uses".
174. Those Regulations as noticed and published, as
required by statute (Section 5 of Chapter 617 of the Laws of
1987 amended ECL 43-0117), set forth provision for
"registration" of all (private and commercial) recreational
uses with Defendant LGpC.
175. ECL 43-0117 in its entirety refers to activities on
Lake George; i.e., upon the waters of Lake George.
176. The provisions of Subpart 646-2.2 (b) clearly set
forth the intent to "grandfather" prior existing commercial
and private uses and to provide for a period of two (2) years
in which Defendant LGpC could "create" the necessary
registration form(s), provide them to pre-existing users, both
commercial and private, and allow for their filing on or
before June 3, 1988.
177. The "grandfathering" provisions clearly relate to
prior existing uses.
178. Absent the "grandfathering" of such prior
existing uses the provisions would be subject to challenge
and invalidity resulting from implementation of ex-post
facto regulation.
179. Subpart 646-2.2 governing the above referred to
Registration enumerates a listing of activities included in the
items for registration.
309 a
180. The history of Subpart 646-2 is significant
including the fact that after its original filing May 13, 1988, it
was thereafter renumbered to 646-1.6, with Rule Making
Activities Publication in the March 6, 1991, State Register,
for the stated purpose of amending Subparts 646-1 and 646-2
and repeal of section 646-2.2 and amendment of Subparts
645-3, 645-5 and 645-7 of Title 6 of the NYCRR.
181. The above referenced publication contained
reference to the adoption of "Stop gap rules governing
certain ‘recreational activities’ . . . ." by the LGpC on June 3,
1988, the above referenced provisions of Subpart 646-2.
182. The statement in the State Register continued in
pertinent part to state that the purported "interim
provisions" of Subpart 646-2 were intended ".. . as a means
to provide controls over new commercial enterprises
involving the specified recreational activities ... ."
183. This provision only related to commercial and
did not in any way deal with non-commercial activities.
184. Continuing, the Notice contained in the State
Register went on to state:
Section 646-2.2 contains definitions of
the recreational activities which will be
subject to one or more limitations: new
recreational activities, parasailing, personal
watercraft (trade names jetskiis, wave
runners, etc.), scuba diving, seaplanes, tour
boats and towing.
185. The State Register went on to elaborate, by way
of explanation, as follows:
Section 646-2.4 establishes permit
requirements for any new recreational
activity such as a new type of craft not
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previously operated on the waters of Lake
George. Under these provisions a new use,
such as private submarines, would be subject
to review by Defendant LGpC prior to being
allowed to operate on Lake George, prior to
issuing the permit... .
186. The recitations contained in the State Register
did not regulate any non-commercial use.
187. Again, continuing, the Notice set forth in the
State Register went on to specify:
Existing operations, that is, tour boats,
seaplanes and parasails operated on the lake
prior to the effective date of the rules would
be granted a permit after an application had
been duly filed.
188. When the regulations referred to in the State
Register publication ultimately were filed and effective, by
their terms, those regulations specified the definition of New
Recreational Activity as follows: 4
(1) New recreational activity or use ;
means a recreational activity not introduced
on the waters of Lake George as of January 1,
1991. [Emphasis Added]
189. By regulation effective August 14, 1991, and
contained in Subpart 646-2.4, Special Navigational Rules,
Permits, the permitting process with respect to those
activities enumerated in Subpart 646-2.3 specifically was
limited to ". .. any new recreational activity or use... ."
190. Plaintiffs' compliance with Defendant LGpC's
original Registration of Recreational Uses, clearly met and
by the responses submitted therewith, exceeded in detail the
responses required for such registration by Defendant
3lla
LGpc.
191. Plaintiffs' filing was both timely under the
original provisions of the 1988 regulations of Defendant
LGpC and certainly a record of prior existing recreational
uses claimed by Plaintiffs as of the January 1, 1991, date
establishing a new, extended date for the base-line
determination of recreational uses.
192. Nowhere in the regulations as adopted, or in
the Notice contained in the State Register was there any
language of limitation relating to continuous usage or usage
before 1988, between 1988 and 1991, or other specification of
such dates of limitation.
193. Plaintiffs first "registered" their recreation uses
with the DEC on November 21, 1981.
194. Plaintiffs both met and exceeded the
Recreational Uses Registration requirement pursuant to the
written request of Defendant White made on behalf of
Defendant LGpC, in some cases to the point of redundancy
since Plaintiffs already had registered the "Sale or Rental of
Watercraft" with Defendant DEC.
195. Plaintiffs relied upon the representations of
Registration in the belief that the uses as registered had been
accepted by Defendant LGpC Commission and were,
therefore, "grandfathered" for any future permitting
purposes of Defendant LGpC.
196. Defendant LGpC in no way contested Plaintiff's
filing with respect to the Registration of Recreational Uses.
197. Defendant LGpC allowed Plaintiffs’
Registration of Recreational Uses to stand unchallenged
from April 1990 until the notification of the requirement for
application to Defendant LGpC for a Class A Marina Permit
was sent by Defendant LGpC to Plaintiffs.
198. While Plaintiffs attempted to comply with the
312a
request of Defendant LGpC for application, Plaintiffs'
position remained that their existing filings and application
to Defendant DEC for Recreational Uses remained as a valid
registration of activities thereby grandfathered.
199. Plaintiffs' interests were established by their
registration and acceptance by Defendant DEC and could
not later be abridged by unilateral action of the very entity
which accepted that filing, Defendant LGpC.
200. If nothing else, Plaintiffs were entitled to rely
upon Defendant LGpC's acceptance of these filings when
over fifteen (15) and seven (7) years respectively passed
before any action was initiated by Defendant LGpC which
in any way or manner could be viewed as even a
questioning of the grandfathering efficacy of that filing.
201. The basis doctrine of laches prohibits such
bureaucratic laxity without even considering the
Constitutional ramifications of such attempted action.
202. Plaintiffs were operating and continue to
operate under and by virtue of an affirmed application and a
validly issued and continuing permit from Defendant DEC,
specifically Permit Number 50-81-0071 MA, dated March 22, :
1982.
203. Pursuant to law, no legislation has been
adopted to supplant the authority of Defendant DEC to r
issue such operating permit, and said permit still validly
authorizes Plaintiffs' operation.
204. On or about March 6, 1990, Defendant White
corresponded with Plaintiffs, sending to Plaintiffs the "Lake
George Park Commission Application for a Class A Marina
Permit". 1. A "Simplified Form" was received by
Plaintiffs from Defendant LGpC, furnished by Defendant
LGpC agent Keith Fish to be used for recreational uses.
205. After receiving Fish correspondence, Plaintiff
313 a
John Salvador responded by letter dated April 23, 1990.
206. Included therewith, Plaintiffs forwarded the
duly completed application for registration of recreational
uses to Defendant LGpC.
207. Enumerated in Plaintiff's response and
registration is the specific request of Plaintiffs for the
recording of all recreational uses which as of the date
thereof, or in the past, prior to the statutory date of January
1, 1988, were conducted at Dunham's Bay Lodge.
208. Based upon applicable laws, rules and
regulations, there existed no requirement that such uses
were to be either continuous or occasional.
209. As specified in the Application for registration,
Plaintiffs submitted a detailed listing of the recreational
activities which Plaintiffs were registering with Defendant
LGpC pursuant to Defendant White's request.
210. The original request, as well as the content of
Subpart 646-2.2 did not limit such registration of pre-
existing uses to facilities owned, offered or controlled by the
Marina owner or operator.
211. Subpart 646-2.2 (c) specifically stated that the
activities in question were those which were "owned,
operated and engaged in on the waters of Lake George".
212. Subpart 646-2.1 also filed May 13, 1988, the
stated Intent ot the regulations was to "regulate commercial
and private recreational activities on the waters of Lake
George ...."
213. With the stated intent of the provisions in
question being regulation of the use of property, those
recreational activities which were pre-existing and some
beyond the scope of Defendant LGpC regulation, clearly
were and are entitled to be afforded the protection of
"grandfathering" of "pre-existing" registered activities.
]
3l4a
214. The mandated registration of pre-existing uses
for the purpose of establishing a base-line for future
determinations of what activities did and did not qualify for
the "grandfathering" protection is rational and an apparent
reasonable quasi-legislative requirement for a pexson or
entity to afford itself of this protection.
215. Plaintiffs acted in reliance, not only on the letter
of Defendant White and the forwarding of a new
registration form developed by Keith Fish, but also upon the
promulgated provisions of Subpart 646-2 concerning
recreational uses and registration.
216. Plaintiffs complied with the specific request of
Defendant White and the requirements of Subpart 646-2.
217. When Plaintiffs met the above mentioned
requirement, Plaintiffs became entitled to the benefits of
“grandfathering" clearly afforded to them by the regulations
as promulgated.
218. Upon meeting said requirements, Plaintiffs also
became entitled to the benefits of "grandfathering" as part of
the provisions of the recreation uses permitted by the DEC
in 1982, "sales or rental of watercraft".
3
219. At the time of the filing of Plaintiffs' response to ;
Defendant White's request, the duly completed Recreational 4
Use Registration was filed and was in the hands of j
Defendant LGpC pzior to the June 3, 1990, date specified in ;
Subpart 646-2 (b) wherein the two (2) year "grace" period 4
was established for registration of existing uses.
220. The cover letter of Defendant White and the
form provided to Plaintiffs was both vague and unclear
concerning what was to be included and how the
information was to be submitted in response to the request.
221. Defendant LGpC re-issued a new and separate
Application for Registration of a Recreational Use.
315 a
222. The vagaries of the form provided by ___
Defendant LGpC to existing users, to a significant extent,
followed the vagaries of Subpart 646-2 itself.
223. When Plaintiffs responded and timely filed
their Registration with Defendant LGpC pursuant to
Defendant White's request, Plaintiffs did not respond with
vagaries.
224. Plaintiffs in their filing with Defendant LGpC
provided detailed specifics concerning the recreational uses
which Plaintiffs affirmed as pre-existing uses for the
purpose of the Subpart 646-2.2 registration.
225. Plaintiffs relied upon the clear implication of
and implicit representation of intent to "grandfather" such
activities for the purpose of future regulation by Defendant
LGpc.
226. Following Plaintiffs' completion of and filing of
the above referenced Registration of Recreational Uses with
Defendant LGpC, Plaintiffs heard nothing further from
Defendant LGpC concerning such uses until June 24, 1996,
when Plaintiffs first were informed of the requirement by
Defendant LGpC for Plaintiffs to "apply" to Defendant
LGpC for a Class A Marina Permit.
LGpC APPLICATION AND LGpC'S
POSITION ON NAME OF APPLICANT
227. Plaintiffs are the holders of a certain Marina
Permit duly issued by the New York State Department of
Environmental Conservation on March 22, 1982, Marina
Permit No. 50-81-0071MA authorizing the operation of a
Marina at the designated location of Plaintiffs' property in
the Town of Queensbury situated in the area more
3l6a
commonly known as Dunham's Bay.
228. On or about June 24, 1996, Plaintiffs received
written notification from Defendant LGpC that Plaintiffs
were to be required to apply for a Permit to Operate a Class
A Marina.
229. Upon information and belief, Defendant LGpC
established two (2) classes of Marine Permits which it
issued, specifically Class A Marina Permits and Class B
Marina Permits.
230. Upon information and belief, Class A Marina
Permits were to be applicable to entities defined in Chapter
IX of Title 6, New York State Codes, Rules and Regulations,
hereinafter referred to as the "NYCRR", Environmental
Conservation, Independent Agencies Within Department,
section 646-1.2.
231. Upon information and belief, Class B Marina
Permits were applicable to entities defined in Chapter IX of
Title 6 of the NYCRR, Environmental Conservation,
Independent Agencies Within Department, Section 646-1.3.
232. On or about May 13, 1997, by correspondence
directed to Defendant DeSantis, as Chairman of Defendant
LGpC, relating to the application of Plaintiffs with respect to
Defendant LGpC's Update/ Renewal process, certain
documents were forwarded to Defendant LGpC.
233. The above specified submission was made on
behalf of Plaintiffs in accordance with the instructions of
Defendant LGpC personnel in form content and timing, in
support of Plaintiff's Update.
234. The documents submitted therewith were:
Cover letter of submission from Plaintiff John Salvador, Jr.,
as President/ Manager of Dunham's Resort Corp. d/ b/a
Pe eee eee
317 a
Jr., as President/ Manager; and "Draft" Permit for the
Operation of a Class A Marina as amended and corrected by
Permittee with applicable Exhibits and attachments,
including written explanation and summary of corrections
and amendments to Defendant LGpC staff's original
proposed "Draft".
235. By that correspondence request was made that
the matter be set down for scheduling on the Commission's
agenda and that Plaintiffs be notified promptly of such
scheduling.
236. By that correspondence on behalf of Plaintiffs,
the request also was made that if any additional information
was required or if Defendant LGpC or its staff had any
questions concerning the matter, response would be made
by or on behalf of Plaintiffs.
237. The position of Defendant LGpC, best
expressed by their Attorney, Martin Auffredou at the April
29, 1998, public meeting of Defendant LGpC, strongly
recommended ta Defendant LGpC that Plaintiffs, as
"landowners" be named personally as the applicants and
potential Class A Marina Permit holders, a requirement not
imposed on other applicants or permittees by Defendant
LGpC stating in pertinent part at that meeting that if"...
there are problems down the road where Defendant LGpC
has to get involved with somebody for an enforcement
matter or litigated matter, my advice to you is to have the
landowner for the purposes of legality, the landowner name
has to be included."
238. Even one of Defendant LGpC members was
wise enough to recognize the discriminatory treatment
being afforded Plaintiffs and their application by Defendant
LGpC and stated, "Martin, we just issued one to the
Flamingo Restaurant [sic. Resort] on Lake George, and we
didn't require George Pestinak's name. Is there any, what's
318 a
the differénce between .. ."
239. At the conclusion of Plaintiffs' presentation at
said April 29, 1998, meeting Plaintiffs attempted to
withdraw the pending application for a Class A Marina
Permit from consideration by Defendant LGpC. |
240. In response to Plaintiffs' attempted withdrawal,
Defendant LGpC raised the issue of pursuant to what
authority Plaintiffs could continue operation, in response to
which Salvador pointed out that the operation was and is
governed by the existing DEC permit issued to Plaintiffs,
specifically DEC Permit to Operate a Marina on Lake George
No. 50-81-0071MA.
241. Defendant LGpC went so far, at that meeting, as
to question Plaintiffs' (as applicants) right to withdraw such
application, to which Mr. Auffredou first responded
vaguely, in response to a further question stated, "I don't
want to see John withdraw the application. . .", thereby
clearly acknowledging the right of the applicant to
withdraw such application.
242. As recently as the notification sent to Plaintiffs
advising them of the scheduling their matter for the
September 29, 1998, meeting of Defendant LGpC, Defendant
LGpC reversed legal course and have stated unilaterally that
Plaintiffs may not withdraw their pending application, even
after the statement of clearly discriminatory intent with
respect to the treatment of their application.
243. Following the conclusion of the April 29, 1998,
meeting of the LGpC, Plaintiffs despite their formal
withdrawal of their pending application, in an effort at
conciliation, agreed to continue in "negotiations" with
Defendant LGpC for the purpose of attempting to resolve
outstanding differences.
244. To that end, Plaintiffs continued to provide
voluminous documents and responses to Defendant LGpc.
a ee — o
319 a
245. By letter dated August 13, 1998, on behalf of
Plaintiffs to Defendant Auffredou, as Counsel to Defendant
LGpC, response was made to correspondence from
Defendant Auffredou concerning a proposed meeting on a
number of issues relating to Plaintiffs' Marina Permit.
246. By said correspondence on behalf of Plaintiffs,
Defendant Auffredou was informed that, as part of
Plaintiffs' attempts to resolve outstanding issues relating to
said permit, Plaintiffs had been attempting to set up a
meeting with the appropriate officials of the Department of
Environmental Conservation to discuss a number of issues
which are holdovers from Plaintiffs' existing Permit issued
by the Department of Environmental Conservation.
247. Defendant Auffredou was advised that the
issues to be addressed by the Department of Environmental
Conservation were identical to a number of the issues
considered by Defendant LGpC.
248. Defendant Auffredou was advised that it was
Plaintiffs' position that it would be of assistance to the
resolution of Defendant LGpC''s issues if the meeting with
the Department of Environmental Conservation were held
prior to Defendant LGpC taking action on the pending
application.
249. Since the Department of Environmental
Conservation had not, as of that date, scheduled the
proposed meeting, a face to face discussion on a number of
these issues as well as others was requested with Defendant
Commission and its counsel.
250. Proposed dates for such a meeting were
requested from Defendant Auffredou.
251. On behalf of Plaintiffs, by said correspondence,
request also was made that final action on Plaintiffs' permit
be delayed by Defendant LGpC until these outstanding
issues have been resolved in order to avoid unnecessary
320 a
litigation.
252. Defendant Auffredou was advised in that
correspondence that at the proposed meeting responds
would be made to Defendants’ your questions concerning
personal watercraft.
253. A meeting date was scheduled for August 18,
1998, at the offices of Defendant LGpC in Lake George, New
York.
254. Said meeting was attended by counsel for
Plaintiffs, Defendants Auffredou, White and Gallagher.
255. At said August 18, 1998, meeting, Defendant
White, specifically conceded the intent of Defendant LGpC
to utilize the Registration of Recreational Uses (referred to
above in statutory history) as a method whereby such prior
existing uses would be "grandfathered" and not subject to
Defendant LGpC future limitation or required to proceed for
"variance" before Defendant LGpC.
256. Upon information and belief, Defendant
White's backing and filling on the topic wherein he stated
that Defendant LGpC later altered the playing field for
those, including Plaintiffs, who had diligently complied
with Defendant LGpC's own regulatory requirement, was,
at best disingenuous and at worst an exercise in Clintonian
verbal manipulation.
257. Upon information and belief, according to
Defendant White, after requiring the filing of the
Recreational Use Registration, above described, deviated
from its original intended purpose as set forth in Subpart
646-2 as promulgated on May 13, 1988, effective June 3, 1988,
and unilaterally elected to promulgate new, revised
regulations governing such recreational uses.
258. By repeal of Subpart 646-2 and replacement of it
with new Subpart 646-1.4 relating to "Special Permits for
321 a
Recreational Uses", Defendant LGpC attempted to
accomplish by administrative fiat what it did not have the
authority to do by valid legislative authorization; i.e.,
develop recreation uses regulations for both commercial and
private users on Lake George.
259. Plaintiffs' compliance with Defendant LGpC's
original Registration of Recreational Uses, clearly met and
by the responses submitted therewith, exceeded in detail the
responses required for such registration by Defendant
LGpc.
260. Plaintiffs' filing was both timely under the
original provisions of the 1988 regulations of Defendant
LGpC and certainly a record of prior existing recreational
uses claimed by Plaintiffs as of the January 1, 1991, date
establishing a new, extended date for the base-line
determination of recreational uses.
261. Nowhere in the regulations as adopted, or in
the Notice contained in the State Register was there any
language of limitation relating to continuous usage or usage
before 1988, between 1988 and 1991, or other specification of
such dates of limitation.
262. Plaintiffs first "registered" their recreation uses
with the Department Environmental Conservation on
November 21, 1981.
263. Plaintiffs both met and exceeded the
Recreational Uses Registration requirement pursuant to the
written request of Defendant White, in some cases to the
point of redundancy since Plaintiffs already had registered
the "Sale or Rental of Watercraft" with the Department of
Environmental Conservation.
264. Plaintiffs relied upon the representations of
Registration in the belief that the uses as registered had been
accepted by Defendant LGpC and were "grandfathered" for
any future permitting purposes of Defendant LGpC.
322 a
265. Defendant LGpC in no way contested the filing
of Plaintiffs with respect to the Registration of Recreational
Uses.
266. Defendant LGpC allowed Plaintiffs'
Registration of Recreational Uses to stand unchallenged
from April 1990 until the notification of requirement for
application to Defendant LGpC for a Class A Marina Permit
was sent by Defendant LGpC to Plaintiffs in June 1996.
267. While Plaintiffs, attempted to comply with the
request of Defendant LGpC for application, Plaintiffs
continued and continue affirmatively to assert that their
existing filings, and application to the Department of
Environmental Conservation of Recreational Uses continue,
as a valid registration of activities thereby grandfathered, to
protect Plaintiffs’ interests and could not later be abridged
by unilateral action of the very entity which accepted that
filing, Defendant LGpC.
268. Following the completion of said meeting on
August 18, 1998, Plaintiffs’ timely submitted their responses
to the LGpC.
269. By letter dated September 10, 1998, counsel for
Plaintiffs corresponded with Defendant Auffredou as
counsel to Defendant LGpC.
270. Said correspondence dealt with additional
information discussed at the August 18, 1998, meeting, and
enclosed additional material for consideration by Defendant
LGpc.
271. By said correspondence, it was reiterated that
by submitting this information, Plaintiffs were in no manner
accepting that Defendant LGpC had any authority to refuse
to allow Plaintiffs to withdraw their application at any time
during the pendency of its consideration by Defendant
LGpC or any subpart thereof.
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323 a
272. It also was requested on behalf of Plaintiffs that
if there were any preliminary response from Defendant
LGpC staff or Defendant Auffredou prior to the Committee's
meeting date, such response(s) be provided to counsel for
Plaintiffs within a reasonable time before the meeting date.
273. In the response to the issues and questions
discussed at the August 18, 1998, meeting, a summary of the
meeting and attendees was set forth, and the subject matter
of the meeting identified as the application referred to for
the purposes of that response collectively as the "Salvador's
Application", but reiterating the fact that said collective
reference herein shall in no way or manner was to be
deemed to or considered to constitute any acknowledgment
or acquiescence to any mingling of entities, each of which
shall remain as legally constituted individual and separate
entity(ies).
274. Said response next addressed issues relating to
the legal authority of Defendant LGpC with respect to
specific matters relating directly to Plaintiffs' application.
275. Next followed a brief recitation of the
background and statutory authority involved, which has
been dealt with more specifically elsewhere in this
Complaint.
276. Before specific issues may be considered, this
issue must be addressed and resolved.
277. In part, said background information supplied
to Defendants reiterated information-both already in the
possession of Defendant LGpC and also previously
submitted by Plaintiffs as apart of the process before
Defendant LGpC, but necessary to restate to clarify the
position of Plaintiffs.
278. In said response it was stated that when
Plaintiffs, in reliance not only on the letter of Defendant
White and the forwarding of a new registration form
324 a
developed by Keith Fish, but also upon the promulgated
provisions of Subpart 646-2 concerning recreational uses and
registration thereof, complied with the specific request of
Defendant White and the requirements of Subpart 646-2,
they became entitled to the benefits of "grandfathering"
clearly afforded to them not only by the regulations as
promulgated, but also as by the recreation uses permitted by
the DEC in 1982 (sales or rental of watercraft) and ultimately
as protected by the United States Constitution, including but
not limited to their right to be protected against a regulatory
diminution of use of their property, without just
compensation (non-revocable DEC permit) and equal
protection of the law.
279. Continuing, said statement explained that
rather than compensating Plaintiffs, through imposition of
additional fees and charges, Plaintiffs, in effect were
compelled to pay for the "privilege" of having Plaintiffs'
properly registered and protected rights eroded.
280. At the time of the filing of Plaintiffs' response to
Defendant White's request, Plaintiffs duly completed
Recreational Use Registration filed it with Defendant LGpC
prior to the June 3, 1990, date specified in Subpart 646-2 (b)
wherein the two (2) year "grace" period was established for
registration of existing uses.
281. Upon information and belief, thereafter
Defendant LGpC
re-issued a new and separate Application for Registration of
a Recreational Use.
282. The vagaries of the form provided by
Defendant LGpC to existing users, to a significant extent,
followed the vagaries of Subpart 646-2 itself.
283. When Plaintiffs responded and timely filed
their Registration with Defendant LGpC pursuant to the
Defendant White request, Plaintiffs provided detailed
pipe cadens Saale iat LP ie Bib
325 a
specifics concerning the recreational uses which Plaintiffs
affirmed as pre-existing uses for the purpose of the Subpart
646-2.2 registration.
284. As set forth in the response to Defendant LGpC,
Plaintiffs relied upon the clear implication of and implicit
representation of intent to "grandfather" such activities for
the purpose of future regulation by Defendant LGpC.
285. Following Plaintiffs' completion of and filing of
the above the Registration of Recreational Uses with
Defendant LGpC, no communication about these matters
was received by Plaintiffs until June 24, 1996.
286. At that time, Plaintiffs first were informed of a
purported "requirement" of Defendant LGpC for Plaintiffs to
"apply" to Defendant LGpC for a Class A Marina Permit.
287. In said response, it was asserted on behalf of
Plaintiffs that, if nothing else, Plaintiffs entitled to rely upon
Defendant LGpC's acceptance of their filings, when over
fifteen (15) and seven (7) years respectively passed before
any action was initiated by Defendant LGpC which in any
way or manner could be viewed as even a questioning of the
grandfathering efficacy of such filings.
288. As stated in said response, Plaintiffs relied upon
the basis doctrine of laches would prohibit such
bureaucratic laxity without even considering the
Constitutional ramifications of such attempted action.
289. Plaintiffs were operating and continue to
operate under and by virtue of an affirmed application and a —
validly issued and continuing permit from the Department
of Environmental Conservation, specifically Permit Number
50-81-0071 MA, dated March 22, 1982.
290. Under and by virtue of existing statute of the
State of New York, no legislation has been adopted to
supplant the authority of the Department of Environmental
sat aa a af ; si i
326a
Conservation to issue such operating permit, and said
permit still validly authorizes Plaintiffs' operation.
291. Also included in said response to Defendants
was an analysis of Defendant LGpC's challenge to the
grandfathering of certain specific activities previously
conducted, documented, permitted to and registered by
Plaintiffs.
292. Specifically, the activities challenged by
Defendant LGpC include Balloon/ parasail, PWCs, and sales
and service of boats.
293. Plaintiffs constantly attempted to traverse
Defendant LGpC's regulatory maze and consistently
complied with each and every, requirement, filing and
registration mandated by the ever-changing laws, rules and
regulations of Defendant LGpC and as interpreted by
Defendant LGpC.
294. Plaintiffs consistently and continually relied
upon the grandfathering of each and every activity so filed,
registered, and documented as required by the Department
of Environmental Conservation.
295. Plaintiffs also detailed in said response the fact
that in their original Application for a Permit to Operate a
Marina, the application grandfathering the marina operation
at that location dating back over twenty-five (25) years prior
to that Application.
296. Plaintiffs had applied to the Department of
Environmental Conservation and Plaintiffs were granted a
non-revocable Permit to Operate a Marina, specifying
services provided including, in part: Sale or rental of Water
Craft (undefined and unlimited by the application and
regulatory definition); Sale or rental of Marine Products;
Rental, Lease or accommodation for Boats not Registered to
the Owner (also undefined and unspecified by application
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327 a
form and/or regulation); Parking Spaces for 75 Customer
Vehicles; Trash Receptacles; Rest Room Facilities; and 67
slips.
297. Plaintiffs in their application provided to the
Department of Environmental Conservation, the proper
issuing authority, all material requested.
298. Plaintiffs were granted the non-revocable
permit in accordance and based upon the terms of said
application.
299. In 1990, Plaintiffs duly complied with the
regulatory requirements of registration of recreational uses
specifying in detail the recreational uses engaged in prior to
the regulatory enactment, at Plaintiffs' facility by the
“owners" and Plaintiffs' guests while using the facilities
offered by Plaintiffs.
300. Responding to the vaguely worded regulatory
demand for registration, in their response, Plaintiffs
specified, with respect to several particular activities, that
while Plaintiffs did not themselves provide the equipment
for their guests to engage in certain specified activities,
either the guests themselves or other guests had provided,
for fee or otherwise, then provided and in the future would
provide such equipment or mechanisms for engaging in
such activities.
301. Plaintiffs specified that said activities included,
but were not limited activities involving Balloon/ parasail,
PWCs, and sales of boats.
302. Plaintiffs went into detail in their submission
and, in said document, under sub-heading of said
registration titled "(2) Offering of Parasailing Rides"
"Balloon" one (1) "engaged in" and under the sub-heading
"(The Operation of a Seaplane" "Balloon" "0" "Owned - "0"
"Operated" but "engaged in" one (1) by the facility and
328 a
others by Guests.
303. Plaintiffs established that the parasail operation
‘engaged in" directly relates to the Balloon operation also
engaged in, since not all parasail operations require
motorized towing.
304. As explained in their submission in response to
the questions of Defendant LGpC and its staff, the
prevailing wind intensity and direction at the Dunham's Bay
site allows parasailing at vessel speeds within those
permitted within the Town of Queensbury Vessel
Regulatory Zone.
305. Plaintiffs also addressed the issue of the use of
PWCs in their response.
306. As early as November 1981, Plaintiffs registered
said use: The "Sale or Rental of Watercraft including Jet
Skis" and noted that in Defendant LGpC's own definitions
set forth in the State Register Notice Defendant LGpC
defines at reference to Section 646-2.3 "personal watercraft"
as "jetskiis", equating the jetski term with the more generic
‘personal watercraft" above referred to) "(5) Rental of Jet
Skis or other Recreational Devices" under the "Type"
heading of "Jet Skis" the Salvadors responded that Jet Skis
under the heading of "Guests" as used and operated by
Guests at the Salvadors' facilities.
307. In their response to Defendant LGpC's request
for information, Plaintiffs also addressed the issue of the
sale of boats.
308. As detailed to Defendant LGpC, Plaintiffs, in
their registration specified under item "(4) Rental OR
OFFERING OF VESSELS" responded their engagement in
said activities with respect to all enumerated types,
including but not limited to "Power Boats, Sailboats, Tour
Boats, Sail Fish, Sun fish, Row Boats, Canoes & Kayaks".
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329 a
309. Explaining in their submission to Defendant
LGpC, in the original non-revocable Marina Permit issued to
Plaintiffs by the Department of Environmental Conservation
upon the original application of Plaintiffs, Plaintiffs were
authorized by the Department of Environmental
Conservation without objection from the Town of
Queensbury to engage in the Sale or Rental of Water Craft
and Marine Products.
310. As recited to Defendant LGpC by Plaintiffs in
their response, Defendant LGpC by statutory mandate
Chapter 617 of the Laws of 1987 (ECL 43-0117(5)) took legal
status which it might enjoy from its regulatory predecessor
the Department of Environmental Conservation to
administer 6 NYCRR Part 646 (july 3, 1981).
311. Defendant LGpC, therefore, could not
constitutionally deprive those landowners within the
regulatory area assigned to Defendant LGpC of the
landowners' Constitutional rights and property interests.
312. As a governmental entity, Defendant LGpC was
and is not allowed to take private property without just
compensation, and the limitation of an existing property
constitutes such taking.
313. Plaintiffs detailed in the above mentioned
response that by issuing the original non-revocable Marina
Permit to Plaintiffs, after noticing the Town of Queensbury
of its intent, the Department of Environmental Conservation
acknowledged the existing "grandfathered" rights of
Plaintiffs to certain specified and outlined operations.
314. After accepting said filing, and issuing the
original non-revocable Marina Permit, the Department of
Environmental Conservation placed Plaintiffs irrevocably
into a class of specifically protected persons and entities
entitled to the protection of their pre-existing uses and
rights.
330a
315. As explained by Plaintiffs with the enunciation
of the mandate for the registration of recreational uses, and
the subsequent filing and compliance therewith by
Plaintiffs, Defendant LGpC, placed Plaintiffs into a further
protected class with respect to the "grandfathering" of those
uses.
316. Plaintiffs clearly established in their submission
to Defendant LGpC that Defendant LGpC could not later be
heard to complain that it "didn't mean it" or that it "changed
its mind" or that it "decided to do something else" and
thereby years later attempt to deprive Plaintiffs of these
clearly established uses.
317. Plaintiffs explained to Defendant LGpC, that
Plaintiffs, in yet another attempt to provide Defendant
LGpC with information which has not been required of
other applicants to establish ‘pre-existing uses" often which
were not even registered by those applicants, provided
Defendant LGpC voluminous testimony, photographs and
documentation of Plaintiffs' basis establishing Plaintiffs'
their entitlement to such uses.
318. In the notification sent to Plaintiffs advising
them of the scheduling their matter for the September 29,
1998, meeting of Defendant LGpC, Defendant LGpC
reversed legal course and stated unilaterally that Plaintiffs
MAY NOT WITHDRAW their pending application, even
after the statement of clearly discriminatory intent with
respect to the treatment of Plaintiffs application.
319. Plaintiffs, however continued to cooperate with
Defendant LGpC and its staff and submitted further
additional and not legally mandated or required
documentation establishing Plaintiffs' engaging in the
activities challenged by Defendant LGpc.
320. Plaintiffs included in their submission to
Defendant LGpC, a specific reservation of rights and
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33la
specifically affirmatively stated therein that by the
submission of said statement and documentation, Plaintiffs
in no way conceded the legitimacy of the demand of
Defendant LGpC staff and advisors.
321. Plaintiffs also noted that the extent and nature
of the "proof" required of Plaintiffs far exceeded the
requirements placed upon other applicants before
Defendant LGpC for the same or similar Permits, as is set
forth in the minutes and records of Defendant LGpC itself.
322. By way of example of the failure of Defendant
LGpC even to check, verify or accept the records kept in the
ordinary course of business of agencies of the State of New
York.
323. As part of their submission to Defendant LGpc,
Plaintiffs, in support of their business activities as boat
dealers, submitted documentary evidence that Plaintiffs
were and are duly licensed by the New York State
Department of Motor Vehicles as a registered "Boat Dealer"
pursuant to the provisions of the New York State Vehicle
and Traffic Law, with the current facility identification
number of 7081805.
324. As set forth in Plaintiffs’ prior filings with the
Department of Environmental Conservation and with
Defendant LGpC, Plaintiffs' facility has been and continues
to include the operation of a Boat Dealer, with all of the
legally associated functions affiliated therewith.
325. Earlier in the proceedings before Defendant
LGpC, Defendant White challenged the legitimacy of
Plaintiffs' operation to conduct repairs and to have the
required State permits for a repair shop.
326. Defendant White failed to prepare properly and
fully on behalf of Defendant.
327. If a full and complete search of applicable
332a
records been made on behalf of Defendant LGpC, and had
Defendant White made himself acquainted with the
applicable laws relating to such "repair shops", Defendant
White would have been aware of the fact that no separate
"permit" is required for the referred to "repair shop"
activities on the part of a State permitted Boat Dealer such as
Plaintiffs.
328. Before Plaintiffs could seek a State Permit as a
Boat Dealer, Plaintiffs were required to have, as Plaintiffs
did have as a pre-existing non-conforming use, Town
Zoning allowance for such operation.
329. The State could not have issued the existing
certification to Plaintiffs as a Boat Dealer without the proper
Town Zoning requirements having been met.
330. Other activities engaged in by Plaintiffs and
duly "grandfathered", permitted and allowed were
challenged or questioned by Defendant LGpC and its staff,
and were addressed throughout the permitting and hearing
process by Plaintiffs.
331. In their September 1998 response, Plaintiffs
incorporated by reference all of their previous submissions
and responses to Defendant LGpC.
332. That response of Plaintiffs in no way was
intended to concede nor did it assent to agreement with
Defendant LGpC with respect to any points not specifically
addressed therein.
333. Said response of Plaintiffs was directed
specifically only to those issues raised by Defendant LGpC
staff and Defendant Auffredou at the August 18, 1998,
meeting.
334. Plaintiffs took the position which they continue
to hold that the activities which Plaintiffs are authorized to
engage, in compliance with law, rules and regulation, have
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: a
333 a
been duly filed, registered, and noticed as required, with the
State of New York, the Town of Queensbury, the
Department of Environmental Conservation and Defendant
LGpC in conformance with applicable laws, rules and
regulations in proper and timely manner.
335. Plaintiffs and their guests, as allowed by the
rights flowing to them from Plaintiffs, have engaged in
numerous activities legally allowed, a fact which Plaintiffs
placed Defendant LGpC on timely and proper notice.
336. Plaintiffs obtained and hold a duly issued non-
revocable Permit from the Department of Environmental
Conservation which Permit, by its nature and terms has no
specified duration.
337. The Class A Marina Permit which now was the
subject matter of the prior consideration by Defendant
LGpC, its staff and its attorney, would constitute a
Revocable Permit of five (5) year duration.
338. Plaintiffs clearly and consistently have stated
that the ex post facto enactment of and attempted
enforcement of new laws, rules or regulations now is
viewed as an attempted limitation of pre-existing, and in
this case, also specifically "grandfathered" activities.
339. Plaintiffs maintain that the activities of their
marina are, have been and shall continue to be authorized
and permitted pursuant to their existing Department of
Environmental Conservation non-revocable Marina Permit
and that any issue with respect to grandfathering of any
activities specified in either or both Plaintiffs' Department of
Environmental Conservation permit filing or the
Recreational Uses filing with Defendant LGpC itself, are
legally authorized and allowed.
340. Plaintiffs also submitted extensive documentary
evidence in support of their position along with their
334a
statement of response to Defendant LGpC.
341. Thereafter, upon information and belief,
Defendant Auffredou, as counsel for Defendant LGpCc,
made request for clarification of certain information and for
additional information concerning certain matters relating to
Plaintiffs' marina operation.
342. By letter dated September 14, 1998, and
transmitted via facsimile and mail, counsel for Plaintiffs'
responded to the requests of Defendant Auffredou.
343. Information was provided on behalf of
Plaintiffs concerning requested additional information
relative to the time that various services were offered by
Plaintiffs.
344. Said response related that the approximate
times of service of the brochures submitted as exhibits were:
Lake George Sailing Unit - 1984-1989; Bill and Sally
Engelhardt - 1996 - Present Sailing; Bill Robinson - 1997 -
Present.
345. Defendant Auffredou also was informed that
Plaintiffs had offered other services over the last twenty-five
(25) years but the records concerning those activities were
not available.
346. Plaintiffs' response also advised Defendant
Auffredou that dock space was rented to the specified
individuals and no other fees or money are received from
such persons or entities.
347. Plaintiffs confirmed to Defendant Auffredou
that all of said individuals were registered marina clients.
348. On behalf of Plaintiffs, the willingness to
provide additional information and/or documentation
again was renewed if Defendant Auffredou or Defendant
LGpC had any further inquiries concerning Plaintiffs'
marina operation.
335a
349. By correspondence dated September 15,
1998, via Express Mail to Defendant DeSantis, as Chairman
of Defendant LGpC, counsel for Plaintiffs forwarded eleven
(11) [one (1) each for Defendant DeSantis and each member
of Defendant LGpC] copies of a submission of Plaintiffs
with respect to the Application for a Class A Marina Permit
before Defendant LGpC for Dunham's Bay Lodge provided
as a courtesy to Defendant LGpC to facilitate understanding
of the position of and additional proof and documentation
submitted by Plaintiffs.
350. Defendant DeSantis also was advised by that
correspondence that said material previously was provided
to Defendant Auffredou as attorney for Defendant LGpC as
requested by Defendant Auffredou and staff of Defendant
LGpC at the August 18, 1998, meeting between counsel for
Plaintiffs and Defendant Auffredou and LGpC staff.
351. In said correspondence, the rights of Plaintiffs
were specifically reserved.
352. Defendant DeSantis was advised in said letter
that submission of said material was offered ina spirit of
cooperation with Defendant LGpC, but in no way
constituted a waiver of any right(s), cause(s) of action or
legal remedy(ies) available to Plaintiffs.
353. Plaintiffs, in reliance upon the statements made
by Defendant Auffredou, Defendant White and Defendant
Gallagher at the above mentioned August 18, 1998, meeting
with counsel for Plaintiffs, believed that the matter of the
previously withdrawn application was not to be considered
or discussed at the scheduled meeting of the Committee for
August 19, 1998.
354. Plaintiffs, in reliance upon said statements and
representations of the above specified Defendants believed
that the matter, instead would be considered at the
September 23, 1998, Committee meeting.
336a
355. The September 23, 1998, meeting of the
Committee was the logical date for the Committee to
consider these matters, since, upon information and belief,
that would be the first date for meeting of the Committee
following the date for submission of the explanatory and
additional material by Plaintiffs flowing from the August 18,
1998, meeting.
356. Plaintiff John Salvador, Jr., attended said
September 23, 1998, meeting of the Committee accompanied
by counsel.
357. According to a "Statement Concerning Purpose
& Conduct of LGPC Project Review Committee Meetings"
made at the commencement of a certain meeting of the
LGpC Project Review Committee, hereinafter referred to as
the "Committee", occurring on September 23, 1998, the
purpose of that Committee is". . . to review permit
applications pending before Defendant LGpC in order to
make recommendations to the full Commission concerning
the issuance, modification, or denial of the application as
well as any State Environmental Quality Review Act
determinations."
358. According to said statement, the Commitiee is
composed of three (3) members of Defendant LGpC and is
chaired by Defendant Stewart.
359. Also set forth therein is the policy statement
that "Permit Applications are initially received by Park
Commission staff and are reviewed by an Environmental
Analyst."
360. The statement also sets forth that public
comment also is solicited as part of the process.
361. According to that document, the public
comment usually is fifteen (15) days, and that, in general,
the Committee only makes its decisions concerning
"issuance" only after the conclusion of the specified public
337 a
comment period.
362. Said policy declaration also specifically stated
that while the meetings of the Committee are open to the
public, "It should be noted that it is not the purpose of this
meeting [referring to the meeting of 9/23/98] to disseminate
information to the general public about a particular project
not to engage in public debate concerning the merits of any
application." [Emphasis added]
363. The Statement went on to specify the
procedures which would follow the conclusio.: of the
Committee's meeting, stating as follows: "The
recommendations of the Project Review Committee will be
taken before the full Park Commission at their next meeting
at which time the full Commission will vote on each
recommended action."
364. At the conclusion of said policy statement the
following language, attempting by unilateral action of
Defendant LGpC retroactively to attempt to create revocable
permits (including non-LGpC issued permits), recites: "It
should be noted that Commission permits may be
suspended, modified or revoked for good cause at any time
by the Commission."
365. The above language implies that such
"suspension", "modification" or "revocation" is may be
undertaken by Defendant LGpC without notice or hearing.
366. Defendant LGpC's stated "suspension,
"modification" or "revocation" would be by unilateral action
of Defendant LGpC.
367. Said policy statement also provided for and
contemplated not process for appeal of any such action by
Defendant LGpC.
368. Upon information and belief, at said September
23, 1998, meeting of the Committee, the above mentioned
338 a
Statement was read or otherwise incorporated into the
record of the Committee meeting.
369. Thereafter, a typewritten copy of said statement
was obtained from staff of the LGpC on behalf of Plaintiffs.
370. Plaintiffs had been informed by staff of
Defendant LGpC that the matter of their pending
application was to be considered at the September 23, 1998,
meeting of the Committee.
371. At said September 23, 1998, Committee
meeting, Plaintiffs learned for the first time that, despite the
representations made by Defendant LGpC staff and by
Defendant Auffredou to Plaintiffs' attorneys at the meeting
held on August 18, 1998, that the matters relating to
Plaintiffs would not be considered until the September 23,
1998, Committee meeting of Defendant LGpC to allow time
for Plaintiffs to respond to questions raised, including
questions raised by Defendant LGpC staff at said August 18,
1998, meeting, the matters invoking Plaintiffs were
considered at a certain meeting of the Committee held, upon
information and belief, on August 19, 1998.
372. The August 19, 1998, Committee meeting took
place even before the date agreed to among counsel for
Plaintiffs and Defendant LGpC staff and Defendant
Auffredou.
373. Following this revelation, following the
conclusion of the Committee meeting of September 23, 1998,
by letter dated September 23, 1998, addressed to Defendant
DeSantis, as Chairman of Defendant LGpC, Defendant
LGpC, its members and staff were reminded on behalf of
Plaintiffs that at the April 29, 1998, meeting of Defendant
LGpC, Plaintiff John Salvador, Jr. withdrew, on the record
the then pending application for a Class A Marina Permit
which also had been the subject of discussion at the
339 a
September 23, 1998 Defendant LGpC's Project Review
Committee.
374. By that correspondence, Defendant DeSantis
and Defendant LGpC also were reminded on behalf of
Plaintiffs that, since the April 29, 1998, withdrawal of said
application, Plaintiffs continued to work ina spirit of
cooperation with Defendant LGpC and its staff to resolve
various outstanding issues with respect to said original
Class A Marina Permit Application.
375. Plaintiffs, Defendant DeSantis and Defendant
LGpC were informed, continued to take the position that
said original application is withdrawn, despite conflicting
statements both on and off the record made by or on behalf
of Defendant LGpC.
376. Defendant DeSantis and Defendant LGpC were
informed that many of the items in contention remained
unresolved.
377. Plaintiffs also advised Defendant DeSantis and
Defendant LGpC that it was Plaintiff’ intention to submit a
new Class A Marina Permit Application to Defendant
LGpC, but that Plaintiffs' prior Application remained
withdrawn as stated by Plaintiff John Salvador, Jr. on the
record on April 29, 1998, at the meeting of the LGpCc.
378. Defendants DeSantis and the LGpC were
informed that since that application remained withdrawn,
Plaintiffs would not be participating in the scheduled
meeting of Defendant LGpC on September 29, 1998.
379. Upon information and belief, at the time of said
correspondence, there was an agenda item with respect to
the application of Plaintiffs on Defendant LGpC's schedule
for the September 29, 1998, meeting.
380. Defendant DeSantis and Defendant LGpC were
reminded that, the applicant, here Plaintiffs, can legally
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withdraw an application at any time prior to final action.
381. A request was made in said correspondence on
behalf of Plaintiffs that documentation be provided by
Defendants that the agenda item relating to Plaintiffs’
application was withdrawn from consideration prior to the
date of the September 29, 1998, meeting of Defendant LGpC.
382. On behalf of Plaintiffs, Defendant LGpC was
informed that a new Class A Marina Permit application
would be submitted to the Commission when completed
based upon all existing facts and any additional information
obtained as a result of the September 23, 1998, Committee
meeting.
383. Defendant LGpC was informed on behalf of
Plaintiffs, that Plaintiffs intended to continue to function, as
in the past, under the irrevocable Permit previously issued
by the Department of Environmental Conservation,
Defendant LGpC's supervising parent agency.
384. Based upon representations made to Plaintiffs
by Defendants, it was the understanding of Plaintiff that the
matter of a Class A Marina Permit application relating in
any manner to Plaintiffs would not be considered by
Defendant LGpC at a certain meeting of the LGpC held on
August 18, 1998, to allow for submission of additional
material by Plaintiffs, pursuant to discussions between
Plaintiffs' attorneys and Tepresentatives of Defendant LGpC,
specifically Defendants White, Gallagher and Auffredou.
385. Ata certain meeting of the Project Review
Committee, at which Plaintiffs had been informed the
matter of a Class A Marina Permit relating to their property
would be considered based upon the submission of
additional material as specified at said August 18, 1998
meeting, Plaintiffs learned that the matter of said Class A
Marina Permit, instead had been considered and dealt with
at the August 19, 1998, meeting.
341 a
386. Plaintiffs also learned for the first time at said
Project Review Committee meeting that Defendant
Gallagher had, on behalf of Defendant LGpC, unilaterally
rewritten said Permit and that it had been put "in the mail"
to Plaintiffs so that it would be received by Plaintiffs only
after the conclusion of the September 23, 1998, Project
Review Committee Meeting.
387. Plaintiffs also learned, therefore, that the
information considered by Defendant LGpC at the meeting
at which the content of said "Revised" Permit was
determined could not possible have included the material
provided by Plaintiffs in response to issues raised by
Defendant LGpC which were discussed with Plaintiffs
attorneys at the above mentioned August 18, 1998 meeting
with Defendants White, Gallagher and Auffredou.
388. The responses, which had been submitted
within the time frame agreed to at said meeting related to
the specific issues/ objections raised by Defendant LGpC,
Defendants White, Gallagher and Auffredou.
389. Upon information and belief, at the meeting at
the offices of Defendant LGpC held on August 18, 1998, was
clearly stated by Plaintiffs' attorneys as in no way or manner
to be deemed agreement to, conceding of or reinstatement
with respect to the previously pending application of
Plaintiffs.
390. Upon information and belief, the underlying
basic issue of Defendants LGpC, White, Gallagher and
Auffredou focused upon the scope of legal authority of
Defendant LGpC.
391. Plaintiffs contended and do contend that by
regulation 6 NYCRR Part 646 dated July 3, 1981, Defendant
DEC, pursuant to the authority legislatively granted and
delegated to Defendant DEC authority over owners of
marina facilities situated on Lake George were required to
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complete an application for a non-revocable Permit to
Operate a Marina on Lake George.
392. As above set forth, Plaintiffs duly complied
with all applicable requirements relating to the operation of
such marina and the obtaining of the required non-
revocable permit.
393. Plaintiffs continue to operate their marina to the
date hereof under, by virtue of and in accordance with said
Non-revocable Marina Permit issue to them by Defendant
DEC.
394. As above specified, Plaintiffs also complied
with the Registration of Recreational Uses when requested.
395. Defendant LGpC challenged the grandfathering
of certain specific activities previously conducted,
documented, permitted to and registered by Plaintiffs.
396. Specifically, the activities challenged by
Defendant LGpC include Balloon/ parasail, PWCs, and sales
and service of boats.
397. In responding to the issues raised by Defendant
LGpC, Plaintiffs have constantly attempted to traverse
Defendant LGpC's regulatory maze and have consistently
complied with each and every, requirement, filing and
registration mandated by the ever-changing Commission
laws, rules and regulations.
398. Plaintiffs consistently and continually have
relied upon the grandfathering of each and every activity so
filed, registered, and documented as required by the DEC
and its statutory successor(s) in interest.
399. Plaintiffs in their original Application for a
Permit to Operate a Marina to Defendant DEC the -
application grandfathering the marina operation at that
location dating back over twenty-five (25) years prior to that
Application, Plaintiffs applied to DEC and were granted a
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non-revocable Permit to Operate a Marina specifying
services provided including, in part: Sale or rental of Water
Craft (undefined and unlimited by the application and’
regulatory definition); Sale or rental of Marine Products;
Rental, Lease or accommodation for Boats not Registered to
the Owner (also undefined and unspecified by application
form and/or regulation); Parking Spaces for 75 Customer
Vehicles; Trash Receptacles; Rest Room Facilities; and 67
boat slips.
400. Plaintiffs provided to Defendant DEC, the
proper issuing authority, all material requested, and
Plaintiffs were granted the non-revocable permit in
accordance and based upon the terms of said application.
401. In 1990 Plaintiffs again duly complied with the
regulatory requirements of registration of recreational uses,
specifying in detail the recreational uses engaged in prior to
the regulatory enactment, at their facility by the "owners"
and their guests while using the facilities offered by
Plaintiffs.
402. In said registration, responding to the vaguely
worded regulatory demand for registration, Plaintiffs
specified, with respect to several particular activities, that
while they did not themselves provide the equipment for
their guests to engage in certain specified activities, either
the guests themselves or other guests had provided, for fee
or otherwise, and in the future would provide such
equipment or mechanisms for engaging in such activities.
403. With respect to the activities involving
Balloon/parasail, PWCs, and sales of boats Plaintiffs in said
registration specified as follows: Under sub-heading of said
registration titled "(2) Offering of Parasailing Rides"
"Balloon" one (1) "engaged in" and under the sub-heading
"(The Operation of a Seaplane" "Balloon" "0" "Owned - "0"
"Operated" but "engaged in" one (1) by the facility and
344 a
others by Guests.
404. Plaintiffs position is and has been that the
activities of their marina are, have been and shall continue
to be authorized and permitted pursuant to their existing
Defendant DEC non-revocable Marina Permit and that any
issue with respect to all legally pre-existing activities
specified in either or both their DEC permit filing or the
Recreational Uses filing with Defendant LGpC itself,
continuing to be legally authorized and allowed.
405. By Resolution No. 98-69 of Defendant LGpC
dated September 29, 1998, Defendant LGpC acted upon the
application which Plaintiffs repeatedly had withdrawn
starting on April 29, 1998.
406. Said Resolution referred incorrectly to
Dunham's Bay Resort Corp., Inc. despite the fact that
Plaintiffs repeatedly had informed Defendant LGpC, its
employees and its attorney of the identification of the
applicant.
407. In said Resolution, Defendant LGpC
acknowledged the fact that Plaintiffs' facility had been
issued a marina permit by the Department of Environmental
Conservation.
408. Said Resolution only recited the letter of
September 23, 1998, withdrawing Plaintiff's application to
Defendant LGpC.
409. Said Resolution did not acknowledge the verbal
withdrawal of application by Plaintiff John Salvador, Jr. on
the record at the April 29, 1998, meeting of Defendant LGpC.
410. Defendant LGpC in said resolution also
incorrectly stated that Plaintiffs' facility only commenced in
1997.
411. At the time at which the staff of Defendant
LGpC conducted site inspection of Plaintiffs' facility, they
345 a
did not observe PWCs on site due to the fact that PWCs
were in winter storage at that time, a situation which
Plaintiffs' had informed Defendant LGpC staff of at the time
of said inspection.
412. Additionally, Defendant LGpC's Resolution
incorrectly stated that the rental of PWCs was not an activity
by the Department of Environmental Conservation permit
under and by virtue of which Plaintiffs operate their facility.
413. Defendant LGpC's Resolution also states as fact
the incorrect premise that Plaintiffs purportedly extended
their wharfs from twenty-four (24) to thirty (30) feet in
length.
414. As Plaintiffs had repeatedly informed
Defendant LGpC and its staff, the extension of the docks in
question was duly authorized and permitted by the
Department of Environmental Conservation.
415. All applicable applications were timely and
properly made by Plaintiffs to the applicable regulatory
authority at the time, that being the Department of
Environmental Conservation.
416. No extensions of docks was done by Plaintiffs
without first having all applicable permits and
authorizations.
417. In fact, commencing in 1988, Defendant LGpC
charged Plaintiffs for dock registration fees based upon said
docks being thirty (30) feet in length.
418. Defendant LGpC continually assessed Plaintiffs
on the basis of the thirty (30) foot length docks and to
demand payment based on said linear footage.
419. Defendant LGpC accepted payment from
Plaintiffs for thirty (30) foot dock length for said docks.
420. The thirty (30) foot length of said docks was
346 a
grandfathered by the Department of Environmental
Conservation permitting previously legally approving said
dock extensions.
421. In said resolution Defendant LGpC unilaterally
stated that while Defendant LGpC acknowledged the
withdrawal of said application by Plaintiffs, Defendant
LGpC claimed that such withdrawal did not "negate"
Defendant LGpC's jurisdiction over the "subject facility".
422. Further statements contained in Defendant
LGpC's Resolution set forth a specific finding that". . . the
continued operation of the subject facility without a Class A
marina permit from the Commission is a violation of
Commission regulations, . . .". [Emphasis added]
423. Said resolution went on to find that ". . . the
NYSDEC marina permit for the subject facility was
superseded by the enactment of the Commission's regulat-
ions applicable to Class A marinas on June 3, 1988, .. .".
424. Defendant LGpC in said resolution did not even
attempt to justify the alleged "superseding" of an existing
permit granting to Plaintiffs a valid property right.
425. Defendant LGpC did not even attempt to allege
any notice to Plaintiffs of the alleged "superseding" of or
elimination of Plaintiffs! existing rights.
426. In a vain attempt to deal with the effective
attempted termination of Plaintiffs! rights, Defendant LGpC,
in a back-handed statement ". . . acknowledges that the
NYSDEC permit may be utilized to establish a baseline level
of marina activity offered at the subject facility which would
form the basis of a Class A marina permit from the
Commission, . . .".
427. Defendant LGpC, did not, however,
acknowledge or admit that Plaintiffs' existing and
continuing permit from the Department of Environmental
347 a
Conservation allowed Plaintiff to continue their operation as
legally authorized, permitted and approved by the
appropriate permitting entity.
428. Defendant LGpC cannot by attempted ex post
facto legislation and/or attempted application to Plaintiffs
deny Plaintiffs of a validly existing property right and
liberty interest.
429. Defendant LGpC, in said resolution also
incorrectly made a finding that ". . . the offering of PWC
rental at the subject facility constitutes an expansion of the
subject facility. . ." and Defendant LGpC required a further
permit for such operation.
430. Despite the clear documentation presented by
Plaintiffs of the pre-existing timely authorization of PWC
rental at Plaintiffs' facility by the appropriate permitting
governmental entity, Defendant LGpC specifically ignored
the facts as they existed with respect to Plaintiffs.
431. Defendant LGpC, in said resolution also
incorrectly set forth a finding that the wharfs ". . . have been
extended and/or modified without a permit, the permits are
maintained in violation of the permit requirements and
design standards of 6 NYCRR Part 646, .. .".
432. As set forth elsewhere in this Complaint,
Plaintiffs specifically detailed in their proof to Defendant
LGpC Plaintiffs timely compliance with the applicable
provisions of law, rule and regulation.
433. Prior to any extension of wharfs by Plaintiffs, -
Plaintiffs first obtained the necessary permits and
authorizations from the Department of Environmental
Conservation, the governmental entity charged with the
duty of regulating such extensions.
DESPERATE TREATMENT OF PLAINTIFFS BY
348 a
DEFENDANTS, INCLUDING DEFENDANT LGpC
434. Upon information and belief, on or about
August 21, 1996, application was made to Defendant LGpC
for a Class A Marina Permit by Frank J. Parillo, hereinafter
referred too as the "Parillo Application".
435. Upon information and belief, on or about the
12th day of March, 1991, Frank J. Parillo, hereinafter referred
to as "Parillo", or his agent(s) recorded a deed purporting to
acquired title from the Estate of an Allison Ellsworth to
certain real property located in the area more commonly
referred to as Dunham's Bay, Lake George.
436. Upon information and belief, on or about the
31st day of October, 1985, Parillo, or his agent(s) recorded a
deed purporting to acquired title from an Robert Ellsworth
to certain real property located in the area more commonly
referred to as Dunham's Bay, Lake George.
437. Upon information and belief, during
approximately 1989, Parillo sought a zoning variance from
the Town of Queensbury Zoning Ordinances then in effect,
specifically designated as Use Variance No 98-1989.
438. Upon information and belief, said application
dealt with exemption sought from various zoning
provisions on the claim of "pre-existing use" by Parillo.
439. Upon information and belief, in support of said
Use Variance Parillo submitted an affidavit entitled
"Affidavit to Demonstrate Pre-Existing Use", sworn to on
September 20, 1989.
440. Upon information and belief, as is set forth in
said Affidavit no reference is made to any existing permit in
the name of Robert Ellsworth.
441. Upon information and belief, based upon the
+ at alls
349 a
records of the Town of Queensbury, in addition to said
affidavit in support of application Parillo also submitted a
form designated as "14-16-4 (2/87)- Text 12" and titled
"617.21, Appendix C, State Environmental Quality Review,
Short Environmental Assessment Form, For Unlisted
Actions Only", with two (2) page attachment thereto.
442. Upon information and belief, although said
Environmental Assessment Form is unsigned, the copy of
said document submitted herewith is in the form as
obtained from the records of the Town of Queensbury, and a
portion of the record upon which the Town of Queensbury
Zoning Board based its determination in the matter of the
application of Parillo for a use variance.
443. Upon information and belief, in Paragraph "III"
of the attachment, specifically refers to one (1) existing
permit from Defendant LGpC only held by Parillo and also
specifies that "nor are commercial boat repairs conducted on
the property."
444. Upon information and belief, said document
purports to set forth the entire operation run by Parillo and
clearly does not establish or even allege the existence of any
permit issued to Robert Ellsworth pursuant to which Parillo
claimed any right to operate.
445. Upon information and belief, according to
correspondence from Karl E. Parker of Defendant LGpC
addressed to Lee York of Defendant Town of Queensbury
dated October 25, 1989, concerning the above referred to
Zoning variance application of Parillo, reference therein by
Defendant LGpC clearly indicated the existence of only one
(1) permit for the areas involved, that being the Allison
Ellsworth permit, identified therein as marina permit #50-
82-0146.
446. Upon information and belief, according to the
terms of the Allison Ellsworth permit and the application
350 a
submitted by Allison Ellsworth in support thereof the
underlying application and, therefore, the permit resulting
therefrom, relates to 95 vessels, which vessel count
specifically included ten (10) vessels on the lake, not in the
brook, in that count.
447. Upon information and belief, in considering the
above mentioned Parillo Zoning variance application,
testimony and submissions were taken by the Queensbury
Zoning Board of Appeals at their second regular meeting
held on December 27, 1989.
448. Upon information and belief, based upon the
minutes of said Zoning Board meeting, at said meeting
testimony and submissions were taken on the record
concerning the Parillo (then pending) application and
specific reference to the marina operations by Parillo were
made by or on his behalf.
449. Upon information and belief, a person
identified in the minutes of said meeting to be a Mr.
Richards, speaking on behalf of Parillo at said meeting
detailed the marina operations and explained the acquisition
process from both Allison Ellsworth and Robert Ellsworth.
450. Upon information and belief, continuing in
support of the Parillo zoning variance application, in the
presence of Parillo and at Parillo's behest, Mr. Richards went
on to state according to said minutes, in pertinent part:
MR. RICHARDS-Stated what we've
got is a permit. I think Allison
Ellsworth had a permit. Frank had
applied to have the permit transferred
over to him which he received this
Spring. In his application he
estimated a boat launch of 20+- boats
a day and that's where the figure
35la
comes from. That was part of his
application when the permit was
given.
451. Upon information and belief, continuing in
support of his zoning variance application, Parillo stated in
his presentation to the Queensbury Zoning Board of
Appeals also supporting the existence of only one (1) marina
permit according to the minutes of said meeting, as follows:
MR. PARILLO-Stated we didn't
examine any records. You want to
keep in mind that the Ellsworth's
[sic.] were over 80 years old. We
signed the contract to divide this in
1988 under the assumption that the
launch was an intrical [sic.] part of the
marina, that it could be reopened. It
was never advised that it couldn't be.
I had conversations with Dave Hatin
and until the day which was, I believe,
in July, we were under the assumpt-
ion that it was a part of the marina
and that there would be no problems.
We got the permit transferred from
DEC. There was a year lapse from the
time we signed the contract until we
bought it because Mr. Ellsworth
[Allison] had passed away. To
answer your question, there weren't
any records to examine.
452. Upon information and belief, the Queensbury ,
Zoning Board thereafter acted, in reliance upon the
352a
information, evidence and testimony provided to the by and
on behalf of Parillo and summarized their finding in Motion
and action there on December 27, 1989.
453. Upon information and belief, thereafter, in
support of Parillo position with respect to Parillo's marina
operation, John W. Caffrey provided an Affidavit sworn to
December 2, 1992, wherein specific reference is made to the
authority pursuant to which Parillo operated his marina,
said authority resting solely upon the transfer of the above
referenced Allison Ellsworth permit.
454. In the early 1990's Plaintiffs filed requests under
the Freedom of Information Law, hereinafter referred to as
"FOIL", requests filed by Plaintiffs with (Defendant LGpC
and/or Defendant DEC requesting copies of all Marina
permits issued by them as of the date thereof for all marinas
operating on Lake George, including but not limited to the
area on or abutting Lake George more commonly known as
Dunham's Bay.
455. On or about the 11th day of October, 1996,
Plaintiffs received response to one of their above mentioned
FOIL request from LGpC.
456. Included in said FOIL request response received
by Plaintiffs was a copy of a marina permit purportedly
issued to Allison Ellsworth (permit no 50-82-0146) on
December 20, 1982 by the Defendant DEC.
457. Included in said FOIL request response received
from the LGpC was a copy of an alleged transfer of the
marina permit purportedly issued to Allison Ellsworth on
December 20, 1982, by Defendant DEC transferred to Parillo
by Defendant LGpC on June 20, 1989.
458. Nowhere in response to the FOIL request was
there included any marina permit for Robert Ellsworth.
459. Upon information and belief, in the Parillo
a ase. See
353 a
application for Permit made to the LGpC Parillo specifically
identified by tax parcel identification number those parcels
for which and in relation to which his application was made,
nowhere in said permit application by Parillo is the tax map
identification number for the parcel acquired by Parillo from
Robert Ellsworth included.
; 460. Upon information and belief, said application
as made by Parillo, on page two of the application it is
specifically limited to prior permit or registration of Mabel
and Allison Ellsworth, no reference is made therein to any
alleged permit held by Robert Ellsworth.
461. By Notice which Plaintiffs received from
Defendant LGpC dated August 1, 1996, Plaintiffs became
aware of the fact that Parillo had applied to Defendant
LGpC for what was identified therein to be a "Class A
Marina Permit".
462. Said Notice received by Plaintiffs contained no
reference to claim of two (2) purportedly existing permits
transferred to Parillo.
463. By letter dated August 21, 1996, Plaintiff John
Salvador, Jr. responded to the LGpC to the Notice
concerning the Parillo application.
464. Prior to that time, Parillo had commenced
litigation against Plaintiffs claiming title to certain docks
which Parillo operated on property titled in Plaintiffs and to
which he made claim under color of title through Quit
Claim Deed, which litigation went to trial and judgment
with order dated October 30, 1996.
465. A copy of decision and order of Judge
Moynihan in said action was made a part of the record
before the LGpC at the committee meeting held on February
19, 1997 at 1:00 P.M. at the Lake George Town Hall.
466. In that decision the Court held that Parillo did
354 a
not have title to the land on which said docks were situated.
467. Other statements contained in said decision and
order were beyond the scope of the matters at issue in the
trial and the gratuitous comments contained therein are not
law of the case nor are they res judicata as to the issues set
forth therein; rather, they constitute non-binding dicta.
468. Thereafter, Parillo filed a Notice of Appeal of
said Order.
469. After the appeal was perfected by Parillo and
heard by the Appellate Division,-the decision of Judge
Moynihan wes altered somewhat and returned to Judge
Moynihan for further proceedings what have not occurred
as of the date hereof.
470. No stay pending appeal of said Order ever was
sought or obtained by Parillo, to allow his continued use of
said parcel under claim of right of title contrary to the
statements made by Mr. Sweeney at the above referenced
February 19, 1997, meeting.
471. Upon information and belief, with reference to
the issue of "quick launch" which was considered by
Defendant LGpC with respect to the Parillo application,
Plaintiffs requested any information submitted by Parillo in
accordance with the requirements for registration of
recreational uses which has been mandated for such users.
472. Plaintiffs did not receive from Defendant LGpC
any information supplied by Parillo for consideration of
such submission and registration of Parillo.
473. Plaintiffs also pointed out to Defendant LGpC
in their consideration of the Parillo application the fact that
other issues remained outstanding and unresolved,
including but not limited to the issues raised by the Town of
Queensbury through its representative James Martin, in his
letter to Defendant Gallagher of Defendant LGpC dated
355a
August 21, 1996.
474. Upon information and belief, the proposed
submission of Parillo as considered by Defendant LGpC
would constitute an expansion of the previously allowed use
as allowed in accordance with the Town of Queensbury
ordinances and rules.
475. Upon information and belief, Parillo did not
submit an adequate parking plan to Defendant LGpC.
476. Upon information and belief, a map with
generalized markings indicating vague locations and
number of "cars" was considered by the sub-committee of
Defendant LGpC, such map clearly did not constitute a
"parking plan".
477. Upon information and belief, no designation of
size and location of parking spaces, traffic isles, allowing
adequate space for backing and turning and specification of
methods and designated areas of ingress and egress in
conformance with standards as set forth in generally
accepted AASHTO guidelines and specifications was
submitted or considered by Defendant LGpC with respect to
the Parillo application.
478. Upon information and belief, Defendant LGpC
was placed on notice by Richard J. Cipperly of Defendant
DEC of serious outstanding issues which, as stated by Mr.
Cipperly in his letter to Defendant LGpC dated September
25, 1996, in which he stated in pertinent part, "... would ask
the Commission to delay any new or renewal [of Parillo
permits] until the ownership issue is resolved ... ."
479. Upon information and belief, thereafter, the
matter of said application came on before Defendant LGpC
for consideration.
480. Plaintiffs attended certain public meetings of
Defendant LGpC at which the Parillo Application was an
-356a
agenda item.
481. At the meeting held on June 25, 1997, Plaintiffs
were in attendance, and information was presented by them
and on their behalf with respect to the position of Plaintiffs
concerning the Parillo Application.
482. Written statements also were submitted by and
on behalf of Plaintiffs with respect to the Parillo Application.
483. One (1) issue raised by and on behalf of
Plaintiffs with respect to the Parillo Application related to
the wharf registration compliance of the Parillo
predecessor(s) in interest.
484. Upon information and belief, the wharf
registration of Allison Ellsworth underlying the issuance of
the Parillo Class A Marina Permit was unsigned and the
verification thereon had been stricken.
485. Upon information and belief, despite the fact
that the form was signed on behalf of Defendant DEC by
Defendant White accepting the registration form.
486. It was and is Plaintiffs' position that any
permit(s) flowing from the above mentioned registrations
and permit(s) were and are inherently defective and,
therefore, void ab initio.
487. Since, as Defendant Auffredou stated at the
June 25, 1997, meeting, the Marina Permits run with the
land, transferring to the succeeding property owner,
Plaintiffs contended to Defendant LGpC that the only rights
which are and have been in the past transferred to Parillo
were and are those legally pre-existing uses which he
operates under and by virtue of his predecessors in title and
interest, specifically, Allison Ellsworth and Robert
Ellsworth.
488. Plaintiffs argued to Defendant LGpC that, if the
initial filing (Allison Ellsworth's unsigned and unverified
357 a
initial registration) was and is defective, no rights can flow
to Parillo from such void initial filing.
489. Plaintiffs raised the issue to Defendant LGpC
that a civil servant (Defendant White), acting ultra vires,
purportedly on behalf of Defendant DEC, cannot
unilaterally correct such inherent underlying defect.
490. Plaintiffs also raised the issue to Defendant
LGpC that no notice was given to Plaintiffs or to any other
members of the public or affected parties of the intention of
Defendant LGpC to "merge" two (2) permits, specifically the _
Allison Ellsworth and the Robert Ellsworth permits.
491. Plaintiffs pointed out to Defendant LGpC that
this issue was raised specifically at the February 19, 1997,
meeting of Defendant LGpC reviewing the Parillo
application for a Class A Marina Permit.
492. The issue concerning the expansion of said
permit also was raised at the February 19, 1997 meeting.
493. Plaintiffs also referenced additional information
obtained from the tax record cards relating to the both the
Robert Ellsworth property and the Allison Ellsworth
property clearly establishing the uses which the prior
owners of the property in question claimed for said property
and established the basis upon which the parcels were taxed
by the applicable municipalities.
494. Plaintiffs presented to Defendant LGpC the fact
that the tax records determine the only use which one of the
prior owners, specifically Robert Ellsworth, which relates in
any way to the uses claimed to be prior commercial uses in
the Parillo Application, is the operation of a limited number
of docks (less than asserted to be the base dock use number
in the Parillo permit for the former Robert Ellsworth
property) and operation of a marine gas pump.
- 495. Upon information and belief, based upon the
358 a
material contained in the above mentioned tax records, it
was presented by Plaintiffs to Defendant LGpC that it
appeared that the marine gas pump operation was
abandoned by Robert Ellsworth well before the termination
of his ownership of the property.
496. Plaintiffs, therefore, contended to Defendant
LGpC that, according to those tax records, there was only
limited commercial use of the Allison Ellsworth property in
question, prior to the conveyance of the property out of
Allison Ellsworth and not at the levels claimed by Parillo.
497. Plaintiffs also pointed out to Defendant that no
statutory authority exists for the purported attempted
merger by the Commission of Robert Ellsworth and Allison
Ellsworth permit in Parillo.
498. Plaintiffs further referred Defendant LGpC to
testimony of Parillo before the Town of Queensbury Zoning
Board of Appeals in a related matter previously before that
body, and, upon information and belief, statements made to
that body by Parillo in apparent contradiction te the position
taken by Applicant Parillo before Defendant LGpC.
499. Plaintiffs also referred Defendant LGpC to
issues previously raised before the sub-committee of
Defendant LGpC concerning parking, safety factors and
hazardous conditions created as a result of such parking,
specifically relating to parking along the Bay Road (County
road by use) right-of-way, adequacy of size of parking
spaces, and jurisdiction of Defendant LGpC, the Town of
Queensbury, Defendant DOT and other applicable entities.
900. Plaintiffs further asked Defendant LGpC to
direct its attention to questions regarding the property
line(s) in the area of the brook and the docks along the brook
which also are the subject of the Parillo Application, the
Proper location of property lines in the area of the brook,
Plaintiffs contended, is key to determination as to the valid
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and proper existence of many of the docks in that area.
501. Plaintiffs informed Defendant LGpC that the
proper location of that line is key to determining whether or
not certain of the Parillo docks in question are on the lands
of the State of New York and specifically in areas designated
as Forever Wild, areas designated as Critical Environmental
area, and/or lands of the Forest Preserve.
502. At the June 25, 1997, meeting Defendant
LeBarron specifically was requested to consider the
significance of this issue as the representative of Defendant
DEC Commissioner and Defendant DEC.
503. Plaintiffs reported to Defendant LGpC that it -
was and is their belief that a survey of the area in question is
or should be in the possession of Defendant DEC, the
successor in interest to a least a portion of said property
from the Nature Conservancy which took title from
Plaintiffs.
504. Plaintiffs pointed out to Defendant LGpC that
ownership of the underlying title is essential to the
validation of the issuance of any Marina Permit(s) by
Defendant LGpC for the area in question.
505. Plaintiffs pointed out to Defendant LGpC that
specifically at issue is the location of the property line either
at the center of the brook or on the East bank.
506. At that time, Plaintiffs brought to the attention
of Defendant LGpC the fact that critical to the determination
of the status of the Parillo Class A Marina Permit was the
determination of the applicable jurisdiction of overlapping
State and Municipal entities.
507. Plaintiffs contended that definition of lines of
responsibility for issues of zoning, permitting and title
determination needed to be resolved before permit issuance -
in accordance with all applicable laws, rules and
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regulations.
JURISDICTION
508. This is an action of law to redress the
deprivation under color of statute, custom or usage of a
right, privilege and immunity secured to Plaintiffs by the
Fourteenth Amendment to the Constitution of the United
States and Title 42 of the United States Code, The Public
Health and Welfare, Section 1983, and arising under the
laws and statutes of the State of New York.
909. This is also an action of law to redress the
deprivation through a conspiracy on the part of Defendants
acting under color of statute, custom, and usage of a right,
privilege and immunity secured to the Plaintiffs by Title 42,
Section 1985(3) arising under the laws and statutes of the
State of New York.
510. This is also an action under the First
Amendment, Fourth Amendment and Fifth to the
Constitution of the United States and Title 42 of the United
States Code, The Public Health and Welfare, Section 1983,
and 1985.
511. This is also an action under the Fourteenth
Amendment to the Constitution of the United States and
Title 28 of the United States Code, The Public Health and
Welfare, Section 1983, and 1985(3).
912. Jurisdiction of this Court is invoked pursuant to
28 U.S.C. sections 451, 1331, 1337, 1343 and 1345.
513. The actions of Defendants, both individually
and collectively, have violated Plaintiffs' rights of free
speech, freedom of association and freedom to petition
government under the First and Fourteenth Amendments of
361 a
the United States Constitution.
514. The actions of Defendants, both individually
and collectively, have violated the rights of Plaintiffs to
petition the government.
515. The actions of Defendants, both individually
and collectively, have violated the rights of Plaintiffs in the
conduct of their business and said acts of Defendants are in
violation of Plaintiffs' rights under 15 U.S.C Section 1 in
restraint of trade.
516. The actions of Defendants, both individually
and collectively, have violated Plaintiffs’ rights by in
derogation of the Article 1, Section 9, Clause 3 of the United
States Constitution by applying to Plaintiffs ex post facto
law and regulation.
517. The actions of Defendants, both individually
and collectively, have violated Plaintiffs’ rights in
derogation of the commerce clause of the Untied States
Constitution, Article 1, Section 8, Clause 3.
518. All of the acts alleged herein were committed
by the Defendants herein within the territorial jurisdiction of
the Northern District of New York.
519. Proper venue is in this Court as the unlawful
action occurred within this District.
AS AND FOR A FIRST CAUSE OF ACTION,
PLAINTIFFS ALLEGE
520. Plaintiffs repeat and reallege each and every
allegation contained in paragraphs numbered "1" through
"519" of this Complaint as if more fully and at length set
forth herein.
362 a
521. Defendants herein have individually and
collectively acted in such a manner as to create a negative
business environment for the Plaintiffs herein, despite
repeated efforts made by Plaintiffs to seek only the rights
due Plaintiffs.
522. Those efforts of Defendants even expanded
beyond just the taking of Plaintiffs's property by their
effective seizure of Plaintiffs's property interests, but also
expanded to place Plaintiffs, commercial operation and
personal reputation up to ridicule by the public with the
charges and legal threats and allegations made against
Plaintiffs and by placing Plaintiffs "on display" as an object
of ridicule with respect to the uses to which they put their
property by making such matters the subject of legal
proceedings purportedly for the purpose of engaging in
regulatory enforcement.
523. These actions have placed the Plaintiffs in a
position where they are threatened with the loss of their
Marina Permit through and enforcement action based upon
false charges to be prosecuted by Defendants following the
Defendants' initial and continuing illegal and
unconstitutional actions of keeping their from proceeding
with legal uses of their property.
524. Defendants herein have purposely carried on
efforts to intimidate and harass the Plaintiffs by using every
means up through and including threat of seizing their
business and personal property, thereby making Plaintiffs’
continued business operation all but untenable.
525. This discrimination by Defendants is carried on
under color of State law and under color of custom and
usage enforced by the officials of Defendant LGpc.
526. The actions of Defendants complained of have
caused Plaintiffs to be threatened with the loss of their
legally granted marina permit issued which is integral to
ON et nani La OO Pa hs Dart te BIE TY 8 Vad Ove Ta Naa Cet
363 a
their business, to incur expenses and to suffer damage to
their business, loss of potential future business and business
reputation as well as personal anger and stress.
AS AND FOR A SECOND CAUSE OF ACTION,
PLAINTIFFS ALLEGE
527. Plaintiffs repeat and reallege each and every
allegation contained in paragraphs numbered "1" through
"596" hereof as if more full and at length set forth herein.
528. The actions of Defendant Auffredou and the
individual Defendants violated Plaintiffs' right of free
speech under the First and Fourteenth Amendments of the
United States Constitution.
529. Plaintiffs have, as citizens of the United States,
residents of the State of New York and resident within the
territorial boundaries of the Town of Queensbury raised
issues concerning improper use of power and authority by
officials of Defendant LGpC and raised issues concerning
the inequitable application of ordinances and rules by
Defendant LGpC and officials, agents, servants and
employees of Defendant LGpC with respect to resident and
land owners targeted by Defendants within their
jurisdictional boundaries, all based upon Plaintiffs' personal
knowledge of applicable facts.
530. Plaintiffs also challenged certain actions of
officials of the State of New York, members of the same
political party to which individual Defendants named
herein owe their allegiance and from which political party
said individual Defendants derive their political power.
531. Plaintiffs's actions with respect to appointed
State officials resulted in Plaintiffs challenging actions taken
against them by those persons in several legal forums,
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including but not limited to the New York State Supreme
Court.and Defendant LGpC itself.
532. The above actions of Plaintiffs were and are
matters of public record.
533. It was following and during the course of
Plaintiffs' challenges to the bureaucratic then entrenched
hierarchy of Defendant LGpC that Defendants commenced
the above actions against Plaintiffs,
534. The actions of Defendants effectively placed
Plaintiffs under threat of legal prosecution and seizure of
assets.
535. All of the above recited actions of Defendants
are in direct derogation of State Law, Rules, Regulations and
policy and applicable Federal Law.
936. The actions of Defendants complained of have
caused Plaintiffs to incur expenses and to suffer loss of
business and potential future business and damage to their
business reputation as well as personal anger and stress.
AS AND FOR A THIRD CAUSE OF ACT ION
OF ACTION, PLAINTIFFS ALLEGE
937. Plaintiffs repeat and reallege each and eve
allegation contained in paragraphs "1" through "536" hereof
as if more full and at length set forth herein.
538. Plaintiffs found themselves the objects of
Defendants’ actions whereby Plaintiffs was more closely
scrutinized than other similarly situated property owners
within the territorial limits of Defendants LGpC through
selectively enforcing the Regulations of Defendant LGpc.
539. Plaintiffs were ostracized by the individual
365 a
Defendants while attempting to construct a pretextural
reason for forcing them to close their business, all while
attempting to provoke Plaintiffs enough to create a pretext
for enforcement actions against them and making every
attempt to undermine the basic rights to which Plaintiffs are
entitled under the Constitution.
540. The actions of Defendants complained of have
caused Plaintiffs to incur expenses and to suffer loss of
business and potential future business and damage to their
business reputation as well as personal anger and stress.
AS AND FOR A FOURTH CAUSE OF ACTION, —
PLAINTIFFS ALLEGE
541. Plaintiff repeat and reallege each and every
allegation contained in paragraphs "1" through "540" hereof
as if more full and at length set forth herein.
542. The actions of Defendants LGpC were
maliciously designed to bring discredit upon the Plaintiffs
before their family, friends, neighbors and associates.
543. Through the public charge of Defendant LGpC,
its employees and agents that Plaintiffs had illegally
constructed dock extensions which Defendants alleged were
in violation of the law and was a planned, calculated
attempt to maliciously, publicly to slander and libel the
Plaintiffs.
544. The actions of Defendants complained of have
caused Plaintiffs to incur expenses and to suffer loss of
business and potential future business and damage to their
business reputation as well as personal anger and stress.
366 a
AS AND FOR A FIFTH CAUSE OF ACTION,
PLAINTIFFS ALLEGE
945. Plaintiffs repeat and reallege each and every
allegation contained in paragraphs "1" through "544" hereof
as if more full and at length set forth herein.
546. Plaintiffs found themselves the object of a
review process which actually was an investigation which
superficially, upon information and belief, was described as
being an investigation into the actions of a property owner
trying to preserve their property in the face of continual
regulatory enforcement by Defendant LGpC.
547. The actions of Defendant LGpC, its employees
and agents in failing to "grandfather" prior existing
recreational uses constitutes an ex post facto regulation in
violation of the Untied States Constitution.
548. The actions complained of in this Complaint
were a result of Plaintiffs's opposition to the illegal and
improper practices of the Defendants which they reasonably
believe to be a clear form of retaliation against them.
949. The actions of Defendants complained of have
caused Plaintiffs to incur expenses and to suffer loss of
business and potential business and damage to their
business reputation as well as personal anger and stress.
AS AND FOR AN SIXTH CAUSE OF ACTION,
PLAINTIFFS ALLEGE
950. Plaintiffs repeat and reallege each and every
allegation contained in paragraphs "1" through "549" as if
fully set forth herein.
PUPAE Sih Bhar A ee SBI KS,
Wisi Shes ele ALOT ee NR ¥
367 a
551. Pursuant to the requirements of the Town of
Queensbury's Zoning Code in its application and
interpretation thereof as applied to Plaintiffs' property is
another example of the actions of Defendants impinging on
and violating the rights of Plaintiffs.
552. At all times hereinafter mentioned, Plaintiffs as
a property owners within the Town of Queensbury and
citizens of the United States, Plaintiffs were and are entitled
to the privileges and :mmunities afforded their as a result of
said citizenship.
553. Upon information and belief, Plaintiffs’
property has been targeted by the Town of Queensbury, its
employees and agents, for specific action not authorized by
or contemplated in the existing zoning scheme of the Town
of Queensbury at the request or direction of Defendant
LGpCc.
554. Defendant LGpC and the Town of Queensbury,
acting at Defendant LGpC’s request or direction, knew or
had reason to know that the acts of selective enforcement
and excessive regulation would cause Plaintiffs damage.
555. Plaintiffs were singled out by Defendants for
abusive action in retaliation for their course of conduct
seeking to obtain the rights and privileges to which they
were and are entitled.
556. Defendants knew or had reason to know that
Plaintiffs were engaged in a commercial business whose
clientele come from throughout the Untied States and from
foreign countries.
557. Defendants engaged in a course of conduct of
continuous harassment, the end result of which was to
interfere with and reduce Plaintiffs’ business in violation of
the Commerce Clause of the United States Constitution.
558. Asa direct result of the actions complained of
368 a
Defendants both individually and collectively, Plaintiffs
suffered damage.
559. Upon information and belief, Defendants’
violation of Plaintiffs' rights is a proximate cause of injury to
Plaintiffs.
560. The injuries sustained by Plaintiffs were not
due to any contributory negligence on behalf of Plaintiffs.
561. The actions of Defendants complained of have
caused Plaintiffs to incur expenses and to suffer loss of
business and potential future business and damage to their
business reputation as well as personal anger and stress.
AS AND FOR A SEVENTH CAUSE OF ACTION,
PLAINTIFFS ALLEGE
562. Plaintiffs repeat and reallege each and every
allegation contained in paragraphs numbered "1" through
"561" hereof as if more fully and at length set forth.
563. Upon information and belief, Defendants are
liable for tort in said Defendants' adoption of an inadequate
and inherently defective regulatory system which is
overlapping, conflict ridden and excessive the legislative
authority given them
564. Upon information and belief, Defendants are
liable for tort in said Defendants' inequitable application of
Defendants Regulations with respect to Plaintiffs.
565. Upon information and belief, at all times
mentioned herein, Defendants failed to use even slight care
in said Defendants’ duty to protect and fully warn Plaintiffs
as a property owners within Defendants' zone of influence
of the intended application of its legally defective and
ambiguous regulatory system with respect to Plaintiffs and
Sa BSN ES
369 a
engaged in conduct that is so careless as to show complete
disregard for the rights and safety of Plaintiffs.
566. Upon information and belief, Defendants are
liable for gross negligence.
967. Upon information and belief, Defendants are
also liable for willful misconduct.
568. Upon information and belief, Defendants have
intentionally acted or neglected to act knowing that their
conduct will probably result in injury or damage to
Plaintiffs.
569. Upon information and belief, Defendants are
liable for their gross and continuing negligence and their
willful misconduct towards Plaintiffs resulting in damage to
Plaintiffs.
970. Upon information and belief, Defendants are
liable for their gross and continuing negligence and their
willful misconduct towards Plaintiffs resulting in Plaintiffs's
injuries,
971. The actions of Defendants complained of have
caused Plaintiffs to incur expenses and to suffer loss of
business and potential future business and damage to their
business reputation as well as personal anger and stress.
AS AND FOR AN EIGHTH CAUSE OF
ACTION, PLAINTIFFS ALLEGE
972. Plaintiffs repeat and reallege each and every
allegation contained in paragraphs "1" through "571" hereof
as if more full and at length set forth herein.
973. Plaintiffs found themselves the object of
Defendants' actions whereby Plaintiffs became the subject of
370a
and the object of attack and scrutiny in a New York State
Court proceeding wherein Plaintiffs found that they had no
available rights or remedies under the laws of the State of
New York.
574. Plaintiffs was slandered, defamed and attacked
in litigation as a PRETEXTURAL reason for Defendants
purported enforcement and others to "punish" Plaintiffs for
the attempted exercise their legally available rights with
respect to, upon information and belief, political allies and
cronies of Defendants.
575. Defendants knowingly caused holds to be
placed upon Plaintiffs' personal assets in violation of State
law as a part of this enforcement action.
576. Defendant LGpC, acting under color of state
law, engaged in a course of conduct intended to deprive
Plaintiffs of their constitutionally afforded rights to property
while attempting to provoke Plaintiffs in a setting in which
Plaintiffs has no rights, enough to create a pretext for their
false claims against their and making every attempt to
undermine Plaintiffs's credibility the Court. -
577. This intent was clearly underscored by the
comments of Defendant Auffredou at the April 29, 1998
meeting of Defendant LGpC, setting forth the intent to "go
after" Plaintiffs' personal assets and circumvent any
protection of corporate existence which might exist.
578. This intent is further underscored by the actions
of Defendant LGpC and its representatives in seeking
attachment and seizure of Plaintiffs' personal assets in the
New York State Court proceeding when Defendant LGpC
and their agents were fully aware that Plaintiffs operated
their businesses in a corporate form.
579. The actions of Defendants complained of
have caused Plaintiffs to incur expenses and to suffer loss of
business and potential future business and damage to their
37la
business reputation as well as personal anger and stress.
AS AND FOR A NINTH CAUSE OF ACT ION,
PLAINTIFFS ALLEGE
980. Plaintiffs repeat and reallege each and every
allegation contained in Paragraphs "1" through "579" hereof
as if more full and at length set forth herein.
981. Plaintiffs found themselves and their assets as
the target of attack in the above mentioned Supreme Court
enforcement proceedings.
982. Plaintiffs quickly found that, as Defendants
White and Gallagher proceeded to change the charges
against Plaintiffs at will and without notice to Plaintiffs,
they effectively found themselves without the ability to
defend themselves and their interests within the existing
structure of the purported marina permit review process
which had in effect been converted into an enforcement
proceeding being run as a Star Chamber Proceeding by
Defendant LGpC and its personnel.
583. Whenever Plaintiffs attempted to defend
themselves within the existing confines of Defendant
LGpC's procedures, they found that, since Defendant LGpC
"owned the football", it could change the rules of the "game"
at will, first alleging that Plaintiffs was in violation for
running an alleged "quick launch operation", then another
variation and then an alleged "boat launching facility"
within the same proceeding, resulting in the denial of
Plaintiffs of the basic right to know the charges against their
so that they could defend themselves and protect their
property rights.
584. The Defendants LGpC and its agents and
employees have engaged in "fluid" definition of terms which
372 a
renders Plaintiffs' compliance with their requests or
compliance impossible.
585. Plaintiffs actively participated in the marina
application review process of two (2) other commercial
entities, the Dunham’s Bay Boat Company and an operation
run by Frank J. Parillo.
586. The procedures used in the review of those
marina permit applications as well as the definitions applied
thereto were markedly different than that applied to |
Plaintiffs' applications.
587. Asa direct result of the foregoing actions by
Defendants herein, acting under color of state law, Plaintiffs
have been and are denied Equal Protection of the laws and
Due Process as guaranteed to Plaintiffs under and by virtue
of the Constitution of the United States.
588. Defendants sought individually and in concert,
acting under color of state law, to deprive Plaintiffs of their
rights and privileges as citizens of the United States
pursuant to the First and Fourteenth Amendments to the
United States Constitution.
589. All of the above is in direct derogation of State
Law, Rules, Regulations and policy and applicable Federal
Law.
- 590. The actions of Defendants complained of have
caused Plaintiffs to incur expenses and suffer loss of
business and potential future business and damage to their
business reputation as well as personal anger and stress.
AS AND FOR A TENTH CAUSE OF ACTION,
PLAINTIFFS ALLEGE
591. Plaintiffs repeat and reallege each and every
373 a
allegation contained in Paragraphs "1" through "590" hereof
as if more full and at length set forth herein.
992. Plaintiffs as the Primary target of Defendants
LGpC and their cohort , were rebuffed by Defendant DEC
in their attempt to protect themselves and their interests, -
when they sought intervention from the office of Defendant
DEC.
593. The permit under which Plaintiffs have
continued to operate was a non-revocable permit issued by
Defendant DEC in 1982 as recited heretofore.
594. This permit was not statutorily or by regulation
995. Plaintiffs have continuously attempted to work
with Defendants LGPpC, its agents and employees, to
complete an application for a Class A Marina Permit.
596. Defendant LGpC as heretofore recited
Tepeatedly changed the level of the "bar" over which
Plaintiffs must leap in order to obtain a Class A Marina
Permit.
597. As stated in the Previous causes of action,
Defendants LGpC have applied both a close scrutiny
"grandfathering".
999. Asa direct result of the foregoing actions by
374a
Defendants herein, Plaintiffs were denied Equal Protection
of the laws as guaranteed to Plaintiffs under and by virtue of
the Constitution of the United States.
600. Defendant LGpC, while informing Plaintiffs
through agents and employees that the charges against
Plaintiffs could be changed at will by Defendants and
without prior notice to Plaintiffs constitutes a denial of the
most basic rights accorded to citizens of the Untied States
under the Fifth and Fourteenth Amendments to the United
States Constitution.
601. Plaintiffs could not even assert basic First
Amendment rights, if they were to have chosen to do so
when they were not even informed of the ever changing
charges pending against them in the shifting sands of
bureaucratic prerogative asserted by Defendants herein.
602. Even in the most egregious criminal cases,
under the Constitution of the United States such a
proceeding without affording the "accused" of his rights
would be in total and complete violation of the
constitutional rights and guarantees of the "accused".
603. In the above mentioned ongoing proceedings
under the guise of the Marina Permit review process
Plaintiffs have been "presumed guilty" of all charges leveled
against them by Defendants.
604. Plaintiffs were "presumed guilty" of all charges
leveled against them by Defendants without benefit of an
opportunity of knowing what standards they had to meet in
order to obtain the largess of being granted a Class A
Marina Permit.
605. Defendants sought to and did, individually and
in concert with each other deprive Plaintiffs of their right of
redress guaranteed them by the United States Constitution.
606. The actions complained of as above set forth
eo ae eee
375a
were done under color of state law and were done
deliberately and with forethought to punish and
discriminate against Plaintiffs and were done with callous
indifference to their Federally protected rights.
607. The actions of Defendants complained of have
caused Plaintiffs to incur expenses and to suffer loss of
business and potential future business and damage to their
business reputation as well as personal anger and stress.
AS AND FOR A ELEVENTH CAUSE OF ACTION,
PLAINTIFFS ALLEGE
608. Plaintiffs repeat and reallege each and every
allegation contained in paragraphs "1" through "607" hereof
as if more full and at length set forth herein.
609. The actions, under color of state law, of
Defendants were maliciously designed to bring discredit
upon the Plaintiffs both before the court and the public, a
factor of significant import to Plaintiffs since their
reputation was and is of significant import to them and their
business. :
610. The actions of Defendants in their attempts to
discredit Plaintiffs constituted a planned and calculated
attempt to maliciously, publicly to slander and libel the
Plaintiffs.
611. The actions of Defendants complained of have
caused Plaintiffs to incur expenses and to suffer loss of
business and potential future business and damage to their
business reputation as well as personal anger and stress.
AS AND FOR A TWELFTH CAUSE OF ACTION,
PLAINTIFFS ALLEGE
376a
612. Plaintiffs repeat and reallege each and every
allegation contained in paragraphs "1" through "611" as if
fully set forth herein.
613. Plaintiffs under their First Amendment rights of
freedom of speech and association and their Fourth
Amendment right to a redress of their grievances, often have
chosen successfully to challenge numerous governmental
officials and entities thorough pro se court challenges.
614. These challenges on several occasions have
involved one or more of the named Defendants, their
employees and agents.
615. All of the Defendants individually and in
concert have purposefully chosen to selectively enforce and
to treat Plaintiffs in a discriminatory manner different from
other similarly situated citizens in retaliation for Plaintiffs'
efforts to exercise their civil rights in violation of Plaintiffs’
rights to Due Process guaranteed them by the Fourteenth
Amendment to the United States Constitution.
616. Asa result of the above, Defendants have cause
harm and damage to Plaintiffs.
AS AND FOR A THIRTEENTH CAUSE OF ACTION,
PLAINTIFFS ALLEGE
617. Plaintiffs repeat and reallege each and every
allegation contained in paragraphs "1" through "616" as if ~
fully set forth herein.
618. For years, Plaintiffs’ property has been used by
ambulance, police, and others involved in rescues or
emergency situations at the south end of Lake George.
619. The location of Plaintiffs’ property and the ease
of accessibility to the water for emergency vehicles has been
377 a
utilized on numerous occasions to assist in rescue
operations.
620. In the past, ambulances have backed down to
the water's edge to effectuate transport of individuals
requiring emergency medical services,
621. Since the area in question is sandy, in the past
vehicles, including emergency medical transport vehicles
have experienced difficulties in maneuvering in this area
and in making a speedy exit from the water area.
North Queensbury Rescue Squad have utilized our property
for drills, practice, as well as in actual emergency situations.
623. Plaintiffs have viewed this usage of their
Property as something which any property owner having
useful facilities as being ready and willing to provide both
in emergencies and when requested by such entities serving
public needs.
624. In the past, Plaintiffs have had both employees
and guests with physical handicaps.
625. During 1999, Plaintiffs have had in their employ
one physically handicapped person involved in recreational
activities.
626. It is anticipated that Plaintiffs will have
handicapped guest in the future.
627. Plaintiffs always have attempted to provide to
such handicapped persons the best access they have
available to them so that such persons may enjoy Plaintiffs’
exercise and recreation facilities and amenities along with
those not suffering from such handicaps.
628. Plaintiffs noted handicapped guest who are
confined to use of artificial ambulatory devices having
378 a
difficulty in maneuvering so as to gain barrier free access to
Lake waters.
629. The sandy nature of the soil, without a firmer
subsurface, further hampers mobility of such handicapped
persons.
630. By letter dated May 7, 1999, Plaintiff John
Salvador, Jr. corresponded with Chris Round, hereinafter
referred to as "Round", the Executive Director of the Town of
Queensbury Community Development Department,
advising him of Plaintiffs’ intention to construct a Handicap
and Emergency Access facility on Plaintiffs’ property.
631. In that correspondence, Plaintiff provided
Round with a sketch showing the proposed location of the
facility and its relationship to the means of ingress and ~
egress.
632. Plaintiffs informed Round that the facility was
to be located on parcel identified as tax parcel 4-1-11, located
in a WR-1A Zone, and also in one of the Town of
Queensbury's Vessel Regulation zones as well as the Lake
George Recreation Zone and the Lake George park
Recreation Zone..
633. Plaintiff told Round that the facility would be
constructed entirely on property owned by Plaintiffs, and
would not be constructed on or disturb any Public Lands.
634. Plaintiff stated that the project would not be
included in the Adirondack Park Agency's recently
established Deep Water Marsh area and that no wet lands
would be disturbed or impacted by the project.
635. By letter dated May 12, 1999, Craig Brown,
hereinafter referred to as "Brown", the Code Compliance
Officer of the Town of Queensbury, responded to my ,
request stating that he had reviewed Plaintiffs’
correspondence.
379 a
636. Brown stated that he had Visited the site on
May 11, 1999, and had determined that it involved a hard
surfaced access facility, part of which would be within 50
feet of the shoreline of Lake George, requiring Planning
Board review through the site Plan Review process.
637. Brown stated that the deadline for June 1999
consideration for inclusion on the Planning Board agenda
was May 26, 1999,
638. By letter dated May 24, 1999, Plaintiffs
responded to Round and Provided for submission in
Support of Plaintiffs’ application, a cross-section sketch of
the proposed Handicap and Emergency Access Facility.
639. Plaintiffs requested Round's Position on
whether some form of Site Plan Review would be required
for the project as Proposed, and requested that if it were
required, that this project be considered for inclusion on the
June 1999 Planning Board Agenda.
640. On May 26, 1999, Plaintiffs submitted a Site
Plan Application for the Proposed Handicap And
Emergency Access F acility.
641. By letter dated June 3, 1999, Round notified
Plaintiffs that the Proposed project had been placed on the
Agenda of the Warren County Planning Board for June 9,
_ 1999, and on the Agenda of the Queensbury Planning Board
for June 22, 1999. a. On June 9, 1999, the Warren
County Planning Board considered the Proposed project as
presented.
642. Plaintiff John Salvador, Jr. attended that
meeting and made a presentation concerning the proposed
facility.
643. Plaintiffs further state that they would make the
site available for the installation of a dry hydrant.
644. Included in the June 9, 1999, minutes of the ;
380 a
Warren County Planning Board, that body, by Resolution
QBY-SPR-25-99.
645. The Warren County Planning Board
unanimously adopted a resolution to approve the proposed
site plan with the statement that the project would have "a
good County impact."
646. The matter of the Handicap and Emergency
Access Facility was on the agenda of the Planning Board
meeting for June 22, 1999.
647. Plaintiffs attended the meeting of the Planning
Board held on June 22, 1999.
648. The agenda for that meeting listed the
application of Dunham's Bay Boat & Beach Club as Site Plan
No. 25-99 and Type as Unlisted.
649. The Agenda for that meeting listed Plaintiffs as
the owners of the real property and listed the Zone in which
the property is located as WR-1A, CEA, APA.
650. The agenda incorrectly listed the location as
2999 State Route 9L.
651. The proper location identification should have
read "18 Dunham Bay Road"; however, the 2999 State Route
9L address was and is correct for our address, and for the
over all address and location of our real property in general.
652. The agenda set forth the purpose of the
application as:
Applicant proposes construction of a
Handicap and Emergency Access facility for
launching water craft. Hard surfacing within
50 feet of the shoreline requires Planning
Board review and approval.
653. At the June 22, 1999, Planning Board meeting,
38la
Plaintiff John Salvador, Jr. presented substantially the same
information in support of the application as he had
presented to the Warren County Planning Board at its June
9, 1999, meeting.
654. In that presentation, Plaintiff addressed the
need for compliance with both the Federal Civil Rights Act
of 1964 and the Rehabilitation Act of 1973 as well as the
Americans with Disabilities Act of 1990.
655. Plaintiff further discussed the regular usage of
their waterfront property by local volunteer units to perform
Practice for as well as qualification for ice rescue during the
winter months, as well as the previously mentioned other
seasonal uses for access by guests and members and uses by
rescue and fire personnel.
656. Plaintiff noted that the Proposed installation of
a dry hydrant to facilitate response in the event of an
emergency situation requiring quantities of water.
657. As part of the consideration of the Proposal at
the June 22, 1999, meeting, the Community Development
Department of the Town of Queensbury submitted staff
notes and recommendation.
658. The Staff note, "the Lake George Park
Commission is reviewing the application, no comments
have been received."
659. The Recommendation of the Community
Development Department was stated as follows:
Staff would recommend approval of the
Proposed launch with the condition the use
and the construction is in compliance with
the Lake George Park Commission and other
regulatory agencies,
660. At page 20, et seq. the minutes of the Planning
382 a
Board for June 22, 1999, set forth the discussion and
consideration of this application.
661. As reflected in those minutes, Plaintiff John
Salvador, Jr. responded to questions and clarified certain
points concerning the proposal for the Planning Board.
662. Plaintiff stated that the handicap usage would
be limited to registered guests and members of the Boat and
Beach Club, and not a facility open to the public at large.
663. Plaintiff also corrected a few technical items
which had been misstated in the Planning Board Agenda for
the record. -
664. When the Public Hearing portion of the
Planning Board Agenda on this item was opened, a letter
was read into the record dated June 18, 1999, addressed to
Round.
665. The letter was stated as signed by Mark T.
Sweeney, hereinafter referred to as "Sweeney", of the law
firm of Shanley, Sweeney, Reilly & Allen, P.C., and stated
that they represented Frank J. Parillo, hereinafter referred to
as "Parillo", a neighbor.
666. The letter, according to the minutes, stated in
pertinent part:
I am writing on behalf to object to the
Salvador's application to construct a
Handicapped and Emergency Launch facility
for watercraft. ... such and expanded facility
would qualify as a "Boat Launch" under
LGPC regulations and would therefore
require the Applicant to obtain an
amendment to its Permit. It is my
understanding that no such application has
been made at this time. 2. Specifically, the
LGPC has limited the scope of the facilities
383 a
operation of the Applicant as follows: The
Applicant is prohibited from operating a
Quick Launch .... 3. The LGPC's strict
limitation of the Applicants’ use of their
beach area for launching and retrieving
vessels by "each registered guest" and "each
berthing guest" only during the term of their
stay, evidences the LGPC's intent to limit the
use of the beach area for launches and is
contrary to the application submitted by the
Salvadors.... 4. Due to the limited usage of
the launch allowed by the LGPC, the
expanded capability of the improved launch
is unnecessary and susceptible of abuse as a
non-permitted boat launch. Accordingly, we
request that the Salvador's application be
denied as contrary to the terms and intent of
the Draft LGPC Marina Permit for this
facility.
667. Next, a further faxed communication from
Sweeney was read into the record.
668. According to the minutes, this communication
was faxed on June 22, 1999, and also was addressed to
Round.
669. In that communication, as set forth in the
minutes, Sweeney, on behalf of Parillo, alleged:
1. Construction and operation of a
commercial-type boat launch at this location
is contrary to the letter and intent of the
Waterfront Residential Zones (Queensbury
Code § 179-60). a. As the Dunham's Bay Boat
and Beach Club is a non-conforming
- enterprise within the WR-1A zone the
Salvadors hereby seek to improperly expand
384 a
a non-conforming use without obtaining a
variance per Queensbury Code § 179-79(D). . .
.-no proper application has been submitted
by the Salvadors per Queensbury Code § 179-
34 thereby denying the Planning Board, the
general public, and adjoining landowners in
particular, the ability to analyze the potential
significant environmental impacts the
commercial-type boat launch would entail. . .
. Whether it would follow the intent of the
district regulations or the Town's new
Comprehensive Land Use Plan; ....
670. Continuing, and seeming entirely to miss the
point and purpose of the proposal, Sweeney claimed that
our proposed Handicap and Emergency Access facility
failed to address issues, including "Fire and emergency
access".
671. According to the minutes, Sweeney concluded:
Accordingly, we request that the Salvadors'
application be denied as (a) contrary to the
express requirements of the WR-1A zone, (b)
an illegal expansion of a non-conforming use
without a variance or variance modification,
(c) lacking other required permits and
approvals and (d) as contrary to the
objectives and guidelines for regional projects
under the Queensbury Code.
672. Following the reading o the two (2) Sweeney
communications into the record, Planning Board Chairman
MacEwan, asked counsel to the Planning Board Mark
Schachner, hereinafter referred to as "Schachner" for his
opinion concerning the Parillo-Sweeney statements.
385 a
673. Schachner referred to the recommendation of
Staff and the need for compliance with Defendant LGpC’s
requirements; however, with respect to other matters
referred to in the Parillo-Sweeney objections, Schachner is
quoted in the minutes as Stating:
I did not, as far as the other concerns
addressed in that letter relative to the goals
and objectives of the Queensbury Zoning
Ordinance, I think the Board is familiar with
those goals and objectives. I think you can
deal with those concerns if you believe
they're valid concerns, but my Own opinion is
that most of that speaks to the issue of State
agency jurisdiction, especially the Lake
George Park Commission, and that's not
really our concern, other than if you want to
condition any approval, if that's where you're
headed, on compliance with the Lake George
Park Commission permit requirements.
That's a perfectly appropriate
recommendation. [Emphasis supplied]
674. Other members of the Planning followed this
comment with statements as follows:
MR. VOLLARO - The only question I have is
that that letter that's written continually
refers to a boat launch. It sounds like that
what we're dealing with is not a boat launch.
That whole letter couches itself in those terms
of boat launch, and that's not what this is, as I
understand it.
645. In response, as quoted in the minutes of that
386 a
meeting, Plaintiff John Salvador, Jr., stated:
MR. SALVADOR - With regard to the two
letters, I would only comment that there's
reference made here to a Lake George Park
Commission permit that's pending. We have
withdrawn that application. That application
does not exist. It has been withdrawn, before
the Lake George Park Commission. We are
operating our marina under a DEC permit
granted to us to do the things we do there.
That permit was granted in 1982. It's still
valid. No one has told us it's invalid.
676. When asked about certain legal issues with
respect to Plaintiffs’ permit, Schachner stated:
I believe the issue that Mr. Salvador has just
referred to, which is whether or not
continued operation of his commercial, Class
A Marina requires Lake George Park
commission approval is subject to dispute. . . .
If you're heading in this direction, you could
certainly take the Staff recommendation,
which I believe is for approval conditioned
on compliance with the Lake George Park
Commission permitting requirements. You
could add the phrase "if any", in which case if
Mr. Salvador is correct and there is no
requirement of the Lake George Park
Commission here, then your approval
condition would be fulfilled, but I will tell
you that I'm quite certain that the Lake
George Park Commission believes that there
is a Class A Marina operating, that it does
require their approval, and that it's a
387 a
violation of State law to not have that
approval. In other words, the State agency in
question, the Lake George Park Commission,
does not agree with the Salvadors' contention
that they can lawfully continue to operate this
Marina under their DEC permit, issued in
1982. Than's my understanding.
677. Plaintiff responded to Schachner, and the
dialogue on the record was as follows:
MR. SALVADOR - We are presently
operating under a DEC permit, okay. That's
what we're doing now. There is a dispute,
that is correct.
MR. SCHACHNER - That's what I said.
MR. SALVADOR - But it's not over the fact
that we don't need a Class A Marina Permit.
It's over the fact that the level of uses they
think we are entitled to, that's the dispute.
MR. SCHACHNER -.... My point stands,
which is there is a dispute between the
Salvadors and the Lake George Park
Commission, as to whether, and /or what
type, of Class a Marina permit they need from
that Agency. None of this, in my opinion, has
very much to do with the application before
us. I would reiterate that the Staff
recommendation seems very logical and very
rationale and very appropriate, and I think
that's one way you can go on this if your like.
678. Thereafter, Plaintiff John Salvador, Jr.
responded in detail to the allegations set forth in the Parillo-
388 a
Sweeney letters.
679. Plaintiffs stated that neither Sweeney nor
Parillo appeared in person at the hearing to respond to
questions on issues which they raised.
680. Plaintiffs further stated on the record, as
follows:
This letter before us refers to a launch, and it
is not a launch. It could be used for that, for
our guests, as our launch facility is used at
the present time. We presently launch boats,
and I have photographs here I can show you.
We presently launch boats. It is classified as
an unimproved launch area. That's what it is.
This letter talks about, the applicant is
prohibited from operating a Quick Launch.
We have made no claim that we're operating
a Quick Launch, absolutely no claim that
we're in the Quick Launch business. The
launch at this facility is not open to the
general public. Our facility is a commercial
operation. There's no way we can deny the
public services. That's what we're permitted
to do. We give those services to people who
register with us, and who pay their fees to be
on our premises. That is commercial activity.
We have permits to do it. We are licensed to
do it, and that's what we do. We operate
within those permits. . . . The applicant's
ability to launch and retrieve vessels has been
specifically limited by the Lake George Park
Commission to each registered guest and
each berthing customer. We agree. . . -
There's talk, in Paragraph 3 about a paved
launch. This launch ramp will not be paved.
There is no paving in that cross section of
389 a
sketch. ... No paving. The second letter,
construction and operation of a commercial
type boat launch at this location. Again, we
are a commercial activity. ... We've been a
pre-existing, non-conforming use. We
understand that. Every aspect of it. It's a
residential zone. ... There will be no more
use than there already is now. There just
cannot be anymore use than we already have.
It'll just be more convenient. It'll be up to
standard for the handicapped people, and
believe me, we have these guests. ...
681. Plaintiff John Salvador, Jr., continued in his
response to the allegations made.
, 682. Thereafter, Resolution No. 25-99 was moved
and seconded.
683. Planning Board Resolution 25-99 was then
adopted by unanimous vote of the members of the Planning
Board, finding,
... the action about to be undertaken by this
board will have no significant environmental
effect and the Chairman of the Planning
Board is herebv authorized to execute and
sign and file as may be necessary a statement
of non-significance or a negative declaration
that may be required by law.
684. Thereafter, Motion to Approve Site Plan No. 25-
99 Dunham's Bay Boat & Beach Club was moved and
seconded.
685. By unanimous vote the Planning Board adopted
the following:
1. The Town Planning Board, after
390 a
considering the above, hereby moves to
approve Site Plan No. 25-99 - Dunham's Bay
Boat & Beach Club.
2. The applicant shall present three (3) copies
of the above referenced site plan to the
Zoning Administrator for his signature.
3. The Zoning Administrator is hereby
authorized to sign the resolution.
4. The applicant agrees to the conditions set
forth in this resolution.
5. The conditions shall be noted on the map.
-
6. The issuance of permits is conditioned on
compliance and continued compliance with
the Zoning Ordinance and site plan approval
process.
686. Following a further very brief discussion, the
portion of the hearing relevant to the applicant in question
ended.
687. By letter dated June 22, 1999, Roger Howard, —
hereinafter referred to as "Howard", writing on letter head
of Dunham's Bay Sea Ray, corresponded with the Planning
Board.
688. In that correspondence, Howard set forth three
(3) items, overcrowding, pollution and traffic and pedestrian
safety as a basts-for-opposition to the proposed project.
391la
689. Howard specifically stated "I strongly object to
the project..." [Emphasis supplied].
690. By letter dated June 22, 1999, from Defendant
LGpC, addressed to Plaintiffs, Plaintiffs were informed as
follows:
Please be advised that the referenced
Project involves the construction of a boat
launch and requires a permit from the
Commission pursuant to 6NYCRR 646-
1.2(a)(1) prior to construction since the project
alters and expands the launch facilities of
Dunham's Bay Lodge and expands the
number or type of services or recreational
activities offered.
It appears that the project also
requires a permit pursuant to Article 15 of the
Environmental Conservation Law, 6NYCRR
608 for the placement of fill below the mean
high water level of Lake George. You should
obtain a determination and, if required, a
permit pursuant to Article 15 ECL from NYS
Department of Environmental Conservation
before commencing construction.
691. By letter dated June 23, 1999, from Round,
Plaintiffs were officially informed of the favorable
determination and vote of the Planning Board at its June 22,
1999, meeting on our proposed project.
692. On June 26, 1999, Plaintiffs responded to
Round's letter and requests and to provided to him a further
cross-section sketch of the facility.
693. Also on June 26, 1999, Plaintiffs wrote to Craig
MacEwan, hereinafter referred to as "MacEwan", the
392 a
Chairman of the Planning Board concerning the approval of
Resolution Site Plan No. 25-99 for the proposed project.
694. In that correspondence Plaintiff raised concerns
about the language contained in the Resolution as adopted
by the Planning Board.
695. Specifically, Plaintiffs pointed out:
It never was our intention to
undertake work of an up-to-standard
handicap and emergency access facility in a
manner which would confine its future use to
that of "launching of water craft".... You
will note from this registration that more than
just watercraft have utilized our present
launch area. ... Unless we can obtain some
kind of waiver, this proposed facility must be
designed to handle on a year-round basis, the
exercise and recreation activities of the
handicapped as well as those involved in
emergency services.
Finally, does the motion as written
allow for emergency vehicle use and access
unless the emergency vehicle is a
"watercraft"?
It is essential that this "launching of
watercraft" limitation be clarified in order for
us to determine which regulatory agencies
might be jurisdictional.
696. By letter dated June 29, 1999, Plaintiff John
Salvador, Jr. wrote to Defendant White, responding to
White's prior correspondence concerning the project.
On or about June 29, 1999, in response to Plaintiffs’ request,
Fe Se ee Ae ea te PT oe a Rd ne
393 a
Plaintiffs received a copy of a Design Packet from the
Independent Living Center.
697. At the July 20, 1999, meeting of the Planning
Board, the Planning Board, a motion was made and
seconded to approve a modification of Site Plan 25-99 for
Dunhams [sic.] Bay Boat and Beach Club.
698. The motion was adopted by vote of five (5) in
favor, none opposed, and one (1) abstention.
699. By that motion, the Planning Board specified as
follows:
In accordance with the way the modification
is made, for lake access is still correct. The
Planning Board has determined, also, that
there is no significant change in the site plan
modification and further finds that there is no-
sufficient change to the original SEQRA
findings. We're revising the original motion
to delete the phrase that dimension drawings
should be submitted prior to issuance of a
building permit, and also we're taking out the
phrase "For launching of water craft", and
replacing that "For lake access", as per
7/20/99 revised resolution.
700. By letter dated July 24, 1999, Plaintiffs wrote to
Richard Wild, hereinafter referred to as "Wild", in his
capacity as Regional Permit Administrator, Region 5, NYS
Department of Environmental Conservation.
701. In that correspondence, Plaintiff referred to the
items set forth in the Resolution of the Planning Board with
respect to the project:
One of the stipulations introduced by
Counsel to the Queensbury Town Planning
Board and made a part of the approval
394a
resolution is that "the use and the
construction is in compliance with the Lake
George park Commission and other
regulatory agencies." We assume that
Counsel has referred to compliance with the
Governor's February 1998 program for
"Wetland and Waterfront Development
Permits".
702. In that correspondence, Plaintiffs referred to the
steps which had already been taken by them with respect to
the project and determination of necessary approvals.
703. Plaintiffs specified as follows:
Concerning this project, we made
contact with Al Bauder, Submerged Lands
Manager with the State Bureau of Land
Management at the Office of General
Services. We were able to point out to Mr.
Bauder that because this facility when
finished will not occupy nor disturb any
Public Lands; a land easement from the
O.GS. should not be required. He concurred
and further suggested that the D.E.C. might
better serve as the coordinating agency for
the facility described herein. To this end, we
are forwarding a complete set of "Joint
Application for Permit" taken from the
governor's program packet. We would like
your confirmation that we will be in
conformance with at least the Queensbury
Planning Board's Resolution as it requires us
to obtain all use and construction permits
required from the un-named regulatory
agencies. :
704. Plaintiffs provided additional information
395 a
therewith to assist in determination of the jurisdictional
interest and limits.
705. By letter dated August 2, 1999, Plaintiff John
Salvador, Jr. corresponded with Defendant White of the
LGpC.
706. Plaintiffs explained therein their need to
comply with the Americans with Disabilities Act provisions
with respect to barrier-free accommodations and access for
the purposes of exercise and recreation for physically
and/or mentally handicapped patrons.
707. Plaintiffs also explained the need to provide
such accommodations for physically and/or mentally
handicapped individuals who might be employed at their
facilities.
708. The emergency access portion of the project was
explained as follows:
The emergency access feature of this
project should be considered more of a
community service undertaking rather than
something which might be considered
beneficial only to our property and our
guests. Without increasing the costs
measurably, we can incorporate the means
which will allow these facilities to be used by
our local emergency services organizations
which supply emergency medical and fire
protection to the recreation community both
on and off the Lake.
709. Rather than expanding any facilities, this project
would, in fact, reduce the facilities available at their location,
specifically, the removal of approximately 12 feet of the 36
foot section of the "L" shaped duly permitted and authorized
dock on Plaintiffs’ property.
396 a
710. None of the project work would encroach on
the Public Lands.
711. All work would be performed up-land of the
Mean High-water Level-of 320.2 MSL for Lake George.
712. In that correspondence, Plaintiffs explained in
detail for the benefit of Defendant LGpC as follows:
As there is concern that the
improvements we are fostering in order to
facilitate handicap access for watersports,
exercise and recreation may constitute an
expansion of our existing operations, we
would like to state that, as is with all of our
insitu facilities, they are intended for use only
by registered lodging guests of Dunham's Bay
Lodge and the dues paying members of the
Dunham's Bay Boat & Beach Club. The only
way an increase in the use of this facility
could occur is if we began to draw a greater
number of physically and/or mentally
handicapped Americans seeking our
accommodations for their exercise and/or
recreation. Even if this be the case, then only
those accommodations which presently
represent an under utilization of our allowed
usage level could be occupied by such
physically and/or mentally handicapped
persons. As for facilitating the work-place for
physically and/or mentally handicapped
persons, we are seeing the need to do
everything possible to enhance the
desirability of our recreation facility as a
place where we can be productively and
gainfully employed regardless of a person's
- handicap.
397 a
713. Plaintiffs requested that Defendant LGpC
advise whether or not a permit from that agency would be
required for project.
714. On or about August 5 or 6, 1999, Plaintiff John
Salvador, Jr. spoke with David Wick, concerning our
proposed installation of a dry hydrant which Plaintiffs
believed would be of assistance to the local fire fighters.
715. By notice dated August 10, 1999, Plaintiffs were
advised by Joseph C. Prall, hereinafter referred to as "Prall",
of the New York State Department of Environmental
Conservation, Division of Environmental Permits, Region 5,
Warrensburg Sub-Office, that Plaintiffs’ application
identified as Application ID #5-5234-00414/00001 for permit
relating to Article 15, Title 5: Excavation & Fill in Navigable
Waters, and permit relating to § 401 Clean Water Act: Water
Quality Certification required additional information.
716. The additional information requested was
specified as follows:
The submission lacked sufficient information
to determine jurisdiction. Please advise what
excavation or placement of fill below the
mean high water mark is proposed. Please
show on the enclosed map where the project
is and the demensions [sic.].
717. By letter dated August 12, 1999, with
attachments, Plaintiffs responded to Prall's request.
718. Plaintiffs first corrected both the applicant name
and the facility name as well as the project description on
the cover sheet the Prall notification has indicated needed to
be attached to the resubmission.
719.
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