Posted: Friday, December 18, 2015 10:00 am | Updated: 10:14 am, Fri Dec 18, 2015.
WATERLOO — The Washington, D.C., lawyer representing opponents of Lago Resort & Casino argued that a single word allowed the town of Tyre to circumvent further environmental review.
Daniel Katz also suggested the Town Board “pre-ordained” the outcome of the State Environmental Quality Review Act process.
New York City attorney Mark Chertok, who is representing Tyre, rejected those claims. So did Alan Knauf of Rochester, the lawyer representing Rochester-based Wilmorite, the company interested in building Lago.
More big-time legal wrangling took over the Seneca County Courthouse Thursday.
Acting State Supreme Court Justice W. Patrick Falvey heard arguments related to the Tyre Town Board’s Oct. 1 decision that Lago would not have any significant adverse environmental impact. Casino Free Tyre and nine of its members filed an Article 78 petition that challenged the board’s SEQR determination Nov. 5.
Falvey will rule at a later date.
Katz argued that a more thorough Environmental Impact Statement is necessary.
“The negative declaration that not one of 26 potential moderate to severe impacts is significant circumvents the EIS process,” he said.
He questioned whether the town used the proper legal guidelines in analyzing the environmental impacts.
“The word used 150 times is ‘will’ have a significant adverse impact, not the proper word of ‘may’ have such an impact, which would trigger an EIS,” Katz noted.
The attorney told Falvey the board was biased.
“The number of mitigations is more than 50, implying and acknowledging that an EIS is required,” Katz said, adding that a board with true concerns about the environment would see 50 mitigations as a reason to conduct an EIS. “That is what should have been done here.”
He questioned whether traffic impacts were addressed properly and insinuated the loss of agricultural land and community character are significant enough to require an EIS. Citing the sheer size of the project in a “tiny, rural town,” Katz said there is an overwhelming case that an EIS should have been done.
Chertok countered by saying the size of the project doesn’t automatically mean an EIS is needed. He noted the Town Board had adopted a mitigation plan that addressed the impacts before concluding none had moderate to large significant adverse impacts requiring an EIS.
“They had six, lengthy public meetings and public hearings,” Chertok said. “There was 31 days of public comment. A negative declaration is possible, despite the size of the project.”
Chertok claimed Casino Free Tyre is asking the court to substitute its judgment for that of the Town Board.
“They say that because they disagree with the town’s conclusion,” he said. “The legal standard [the town] applied was right, not wrong. The EIS was not required.”
“The record shows the board took the required hard look, and the bottom line is [Casino Free Tyre] disagrees with the conclusion,” Knauf added. “There is a strong basis for the negative declaration There is no question the board did a reasoned elaboration to support their conclusions.
“An EIS is not required just because a project is big. It is only required if the lead agency determines there are significant adverse environmental impacts not addressed by mitigation.”
Knauf said a Type I project such as Lago does not automatically trigger an EIS, noting more than 10,000 Type I projects in the state have had a negative declaration and gone forward.
He lauded Lago officials for going beyond what is required of a mitigation plan.
“If nothing else, they should be saluted for doing a great job,” Knauf said.
After hearing the arguments, along with brief rebuttals from all three attorneys, Falvey requested a paper copy of the state’s handbook and workbook used in the SEQR process. He said he did not want to rely on the online version.
Lago has been recommended to receive one of four casino licenses for non-Indian entities. The state Gaming Commission has scheduled a meeting Monday, and the possible awarding of licensing is on the agenda.
“Finger Lakes Times”