Complaint (Filed) Without Exhibits PDF

Case 1:15-cv-00917-GLS-CFH Document 1 Filed 07/27/15 Page 1 of 54
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
DOLOMITE PRODUCTS COMPANY, [NC..

Plaintiff,
-
against
COMPLAINT 1:15-cv-917 (GLS/CFH)

JURY TRIAL
DEMANDED
TOWN OF BALLSTON, NEW YORK: TOWN BOARD of

the TOWN Of BALLSTON. NEW YORK; and WILLIAM
GOSLIN, individually and in his capacity as Town of
Ballston Board member,
Defendants.
Plaintiff Dolomite Products Company, Inc. (hereinafter Dolomite or Plaintiff), by its

attorneys Couch White, LLP. as and for its Complaint against the above-captioned Defendants,
respectfully alleges as follows:
SUMMARY AND NATURE OF THE ACTION
1.
This action is brought by Dolomite to obtain redress for past and on-going pervasive
and concerted government-sponsored disparate treatment and other civil rights violations by
Defendants Town of Ballston (the Town). the Town Board of the Town of Ballston (the Town
Board) (collectively, the Town and Town Board are referred to herein as the Town Defendants)
and William Goslin (Goslin) (collectively, the Town Defendants and Goslin are referred to
herein as the Defendants) involving Dolomites lawful project in the Town of Ballston, New
York, including the conspiracy formed by Defendants to violate Dolomites civil rights.
2.
Under well-established New York law, municipal zoning is required to be
conducted in accordance with a comprehensive plan.

3.
A comprehensive plan is the essence of zoning, being the product ofa calm and
deliberate consideration of the alternatives and not

or even majority of the community. Udell
4.
i.
the whims of either an articulate minority
Haas. 21 N.Y. 2d 463, 469 (1968).
A primary function of a comprehensive plan is to protect[] the landowner from
arbitrary restrictions on the use of his property which can result from the pressures which outraged
voters can bring to bear on public officials. Id. at 470.
5.
It follows that the inclusion of the permitted use in [a zoning] ordinance is
tantamount to a legislative finding that the permitted use is in harmony with the general zoning
plan and will not adversely affect the neighborhood. A Shore Steak House v. Thoinasron, 30
N.Y.2d 238 244 (1972).
6.
Justification for the enactment of zoning legislation that interferes with a permitted
property interest must be found in the needs and goals of the community as articulated in a rational
statement of land use control policies known as the comprehensive plan or that amendment is
ultra vires. Id. at 477.
7.
Moreover, [d]iscrimination in zoning is usually thought of in terms of the injustice
done to the landowner. In reality, it is also a Tong done to the communitys land use control
scheme, It is the opposite side of the coin, one side of which is spot zoning. Id.
8.
Zoning and planning decisions are supposed to be madc on a level playing field
which field is described and expressed in the comprehensive plan.

9.
As explained infra, that did not occur here.
10.
Rather, a deliberate plan and effort led by a member of the Town Board, and
acquiesced to, and participated in, by other Town boards resulted in a conspiracy intended to deny
Dolomite its rights.
11.
Manufacturing, including the production of hot mix asphalt, has been permitted in
the Towns Industrial District since at least 1985, which use was confirmed by the Town when its
Comprehensive Plan was last revised in 2006.
12.
The Town also revised its Zoning Ordinance in 2006, and manufacturing, including
the production of hot mix asphalt, continued to be a permitted use in the Industrial District.
13.
The Town has revised portions of its Zoning Ordinance 45 times since 1985.
14.
Since 1985, the Town has never revised the definition of or location of
manufacturing as a permitted use.

15.
Since Dolomite started to develop its plans for its hot mix asphalt plant (a permitted
use and therefore a lawful project in the Town of BalIston) in 2010, Dolomite has repeatedly been
subjected, after being assured that it would be treated consistent with the Towns historic treatment
of other businesses, to outrageously arbitrary and capricious conduct by officials of the Town who
have abused their authority and allowed a vocal minority and petty prejudices to govern municipal
affairs.
16.
Truth be told, the Town did not and does not want the Dolomite project to be built.
17.
If complete or partial revision of the Industrial District was the avenue by which to
accomplish the Towns goal, it had legal avenues available to achieve such a revision. However,
as seen below, the Town would not be bothered with the legal niceties required to lawfully
foreclose the Dolomite project.
18.
Instead, the Town adopted a defective zoning revision intended to preclude
Dolomites lawful project in contradiction of its own Comprehensive Plan, and was undeterred in
its efforts by the fact that the trial court. as explained infra, nullified that effort.
19.
Rather than going back to the drawing board, the Town reenacted its defective
zoning amendment, again without considering or modifying its Comprehensive Plan, and with
even greater notice defects.

20.
While Dolomite was kept busy at court, the Town, acting through another of its
boards, decided that it could treat Dolomite differently than any other business that was or sought
to be located in the Town.
21.
Eventually, having seen and heard enough, the trial court granted Dolomite a
temporary restraining order as to the second zoning amendment, based on the bad faith actions of
the Town.
22.
Despite the granting of the temporary restraining order, the Town has remained
intransigent, has caused enormous harm to Dolomite in both time and money, and Dolomite has
been left with no option other than this suit.
23.
The civil rights violations to which Dolomite has been repeatedly subjected have
had the purpose and effect of depriving Dolomite of its constitutional and statutory rights.
24.
Dolomite seeks damages pursuant to 42 U.S.C.
1983 as a result of Defendants
repetitious and purposeful violations of Dolomites substantive due process and equal protection
rights guaranteed by the United States constitution.
25.
The constitutional violations articulated against the Defendants, who acted both
individually and in concert, arise from multiple categories, as articulated in detail infra. all of
which were aimed solely at the prevention of, and interference with. Dolomites ability to construct
its proposed asphalt plant to be located within the Curtis Industrial Park (the CIP), located in the
Town.
26.
The Town Defendants, individually and in concert with Goslin. have violated
Dolomites civil rights under 42 U.S.C.
1983 by, among other things: (i) discriminating against
Dolomites lawful project, refusing to apply the same longstanding standards to the Dolomite
project as were applied to other similarly situated businesses within the CIP and, instead,
selectively singling out Dolomites project and treating it in a disparate manner from the other
businesses located in the CIP; (ii) repeatedly extending. dilatorily, in bad faith and with malicious
intent, the processing of Dolomites site plan application before the Town of Ballston Planning
Board (tlanning Board) with the sole aim of delaying processing to permit the adoption of LL.
No. 3-2013; (iii) enacting L.L. No. 3-2013 with the sole intent of delaying, hindering and
preventing Dolomites project, despite (a) repetitive bad faith statements by Town Board officials
indicating that said law would not apply to Dolomites proposed project and (b) Defendants
awareness that the law was, pre-adoption, materially defective as evidenced by the public
statements of the then Town Supervisor; (iv) halting, dilatorily, in bad faith and maliciously, the
processing of Dolomites site plan application, ostensibly as a result of the enactment of L.L. No.
3-2013, but in advance of that laws statutory effective date; (v) frivolously and maliciously
refusing in bad faith to withdraw L.L. No, 3-2013, despite Defendants public recognition of its
facial and material defects, demanding instead that the Saratoga Supreme Court judicially nullify
said L.L. No, 3-2013 in order to prevent and delay Dolomites lawful project; (vi) demanding.
subsequent to the judicial nullification ofL.L. No. 3-2013, dilatorily, in bad faith and maliciously,
that processing of Dolomites site plan application be delayed while tie minimis information was
demanded from, and supplied by, Dolomite in order that Dolomites long-pending project would
be further delayed, hindered and prevented while the Town prepared to enact L.L. No. 2-2014; and
(vii) adopting L.L. No. 2-2014, a virtual reenactment of L.L. No. 3-2013, suffering from the same
Local Law No. 3-20 13 was judicially nullified by the Saratoga County Supreme Court following an
Article 78 special proceeding commenced by Dolomite.
5
substantive, and even greater notice, defects than its predecessor,2 for the sole malicious and bad
faith purpose of hindering, delaying and preventing Dolomites lawful project, and injuring
Dolomite.
27.
Defendants conduct is and should be declared unlawful, and should be
permanently enjoined and remedied by an appropriate award of monetary damages, and

Defendants and all those acting in concert with them should be enjoined from performing any and
all acts in furtherance of their acts depriving Dolomite of its constitutional rights under the law.
JURISDICTION AND VENUE
1331 and 1343.
28.
Jurisdiction of the Court is based on 28 U.S.C.
29.
This action is brought pursuant to the Fourteenth Amendment to the United States
Constitution, as well as the Civil Rights Act, 42 U.S.C.
1983.
30.
Declaratory relief is authorized pursuant to 28 U.S.C.
31.
Venue is proper under 28 U.S.C.
2201 and 2202.
1391(b) in that Defendants reside, and the claims
alleged herein arise, in this Judicial District.
PARTIES
32.
Dolomite is a domestic corporation duly organized and existing under the laws of
the State of New York with a principal office and place of business at 124 Kings Road,
Schenectady, New York 12303.
33.
Upon information and beliel the Town is a municipal corporation incorporated
Noting that, as explained below, L.L, No. 2-2014 was adopted prior to the judicial nullification of L.L.
No. 3-2013, but was noticed as if L.L. No. 3-2013 (which Defendants knew was destined to be stricken)
iiever existed.
2
under the laws of the State of New York, with an office and place of business at 323 Charlton
Road. Baliston Spa, New York 12020.
34.
Upon information and belief, the Town Board is a town board duly constituted
under, and with the power and duties provided by, the laws of the State of New York and has a
principal address of 323 Charlton Road, Ballston Spa, Saratoga County, New York.
35.
Upon information and belief, Defendant Goslin, an individual, was at all relevant
times a member of the Town Board and a resident of the Town.
FACTUAL BACKGROUND
Dolomites Project in the Curtis Industrial Park
36.
Dolomite is a large materials supplier to the construction industry in upstate New
York. Some of its products include aggregates (crushed stone, sand and gravel), ready mix
concrete, and asphaltic concrete (commonly referred to as hot mix asphalt or blacktop).
37.
Blacktop is manufactured by heating and mixing liquid asphalt, which is
manufactured off site, with varying grades of sand and stone depending on customer needs (ag..
driveways or highways).
38.
Most of Dolomites products are known as high volume/low value products. The
value of Dolomites products is so low that the cost of transporting the product more than 25 miles
from the point of production becomes higher than the market price for the product.
39.
The further the distance, the more disproportionate the transportation costs.
40.
Blacktops market radius is further curtailed by the requirement that the delivered
products temperature remain above specified minimum temperatures based on the particular type
of pavement being placed.
41.
Blacktop is not heated while in transit and it cannot be hauled a significant distance
without cooling below placement specifications.

42.
Blacktop transportation costs and minimum temperature requirements result in a
very limited geographic marketplace that can be supplied from a single blacktop facility.
43.
When new markets for Dolomites blacktop products are identified, the geographic
constraints discussed above require Dolomite to site facilities in close proximity to the ne market.
44.
In 2010-2011, as part of its standard due diligence efforts. Dolomite identified a
growing need for its products in the Ballston and Malta area in Saratoga County and identified the
Curtis Industrial Park (CIP) as a viable location where it could establish and conduct a blacktop
business.
45.
The CIP was an ideal location, not only geographically, but because the Towns
Comprehensive Plan and Zoning Ordinance specifically identified it as a preferred location for
uses such as Dolomites blacktop plant.
46.
Further, the CIP was, and is, a single tax map parcel that had existed in the Town
for many years, predating both the zoning and subdivision laws and, as explained below, had
historically been treated by the Town as a single use
that of industrial park
in which the
various businesses within the CIP were treated by the Town as improvements within the
industrial park, rather than individual uses to which municipal land use laws, such as subdivision,
applied.
47.
Dolomites selection o1 and long-term lease of property in, the CIP for the
manufacture of blacktop was predicated on its justified reliance on the Towns Comprehensive
Plan, its Zoning Law adopted consistent with and in reliance on the Comprehensive Plan, and the
Towns historical treatment of the establishment of various businesses within the CIP. Each is
discussed in/rn.
The Towns Comprehensive Plan
48.
On or about June of 2006, the Town of Ballston completed and enacted a
Comprehensive Plan, which recognized that the Towns existing and ftiture industrial development
was appropriately located in the northeastern part of the Town. A copy of the Comprehensive Plan
is attached hereto as Exhibit A.
49.
The Comprehensive Plan specifically noted, and continues to note, that the CIP was
a good candidate for further industrial development that would add to the Towns lax base (see
Lx. A at 27).
50,
The Comprehensive Plan states In this plan, the Town has identified locations
where industrial and mixed use commercial activities are desired by the community. Now the
Town should identify the type of businesses it hopes to attract and then develop a strategy to attract
those businesses (see Ex. A at 55).
51.
The 2006 Comprehensive Plan continues to remain the official Comprehensive
Plan for the Town.

The Towns 2006 Zoning Law
52.
Consistent with its Comprehensive Plan, in June 2006 the Town revised its zoning
regulations to conform with its newly adopted Comprehensive Plan. A copy of the 2006 Zoning
Ordinance enacted by L.L. No. 5-2006 is attached hereto as Exhibit B.
53.
Thereafter, and at all times relevant hereto, the manufacture of blacktop has been a
permitted use in the CIP within the Towns Industrial District (see Ex. B).
54.
Another component of Dolomites selection of the CIP as a site for its proposed
plant was its ftirther awareness of a recently concluded dispute between the Town and a property
owner over the property owners plan to locate a Wal-Mart store in the Town.
55.
In the course of that dispute, extensive arguments over whether the Town had
appropriately enacted its 2006 Zoning Ordinance were resolved at the Appellate Division, with the
Court concluding that the 2006 Zoning Ordinance was part of a well-considered and
comprehensive plan calculated to serve the general welfare of the community. Rossi v. Town Ed.
of the Town ofBailsion, 49 A.D.3d 1138, 1144 (3d Dept 2008) (quotations omitted.)
56.
In evaluating Ballstons Zoning Law, the Appellate Division accepted and agreed
with the Town Boards position that the planning and environmental review conducted in
connection with the comprehensive plan, findings and consequent zoning changes were made with
extraordinary care and thoroughness, and represent a balancing of intcrest in the Town of
Ballston. Id.
57.
On May 1. 2011, and recognizing that the Town had carefully and thoroughly
considered the propriety of allowing the manufacture of blacktop in the CIP, Dolomite entered into
a twenty-year Lease Agreement with Curtis Industrial Park, LLC and Saratoga Lumber Traders,
Inc. for the lease of a ten (10) acre parcel of vacant land designated as Lot 55 in the CIP, in the
Town of Baliston. A copy of the Lease Agreement dated May 1, 2011 is attached hereto as Exhibit
C.,,
The Towns Historical Application of its Land Use Laws to the Businesses in the CIP
58.
The CIP exists within the Towns Industrial District.
59.
Upon information and belief, prior to 1985 the Town had not established any
Industrial Zoning Districts anywhere within its corporate borders.
10
60.
In 1985, the Ballston Town Board adopted a new Zoning Law via Local Law No.
2-1985. A copy of the 1985 Zoning Law, as filed with the New York Department of State, is
attached hereto as Exhibit D.
61.
The 1985 Zoning Law authorizes the creation of Planned Unit Development
Districts (PDDs) in the Town to provide for the rezoning of land to
industrial development
zones (Ex. D, Art. 9).

62.
The PDD provisions in the 1985 Zoning Law contain Planned Development
Industrial Standards. which are the only industrial regulations contained within the 1985
Zoning Law (Ex. D 9.4.C)
63.
Manufacturing was defined in the 1985 Zoning Law as [ajny process whereby
the nature, size, or shape of articles or raw materials are changed, or where articLes are assembled
or packaged (Ex. D, App. A).
64.
Authority to create industrial development PDDs within the Town predated the
1985 Zoning Law, as evidenced by the existence of the Schultz Industrial Park. a PDD adopted
via Local Law No. 1-1984. a copy of which was annexed to the 1985 Zoning Law (Ex. D, App.
B).
65.
The Towns first officially designated Industrial District was created through
enactment ofL.L. No. 1-1986. A copy of Local Law No. 1-1986, as filed with the Department of
State, is attached hereto as Exhibit E.
66.
Local Law No. 1-1986 established the boundaries of the Industrial District,
encompassing the CIP. and established regulations for the Industrial District (see Ex. E).
67.
Local Law No. 1-1986 very closely tracks the content and wording of Local Law
No. 1-1984. which created the Schultz Industrial Park, a designated PDD. For example, both local
11
laws contain provisions typical to PDDs, but not to zoning districts, such as:
(a)
Strictly limiting the access roadways to such developments (E. D.

App. B. Sec. 4B(v); Ex. E, Sec. 7A.3(h) ([a]ccess to the Industrial
Zone shall be by Route 50, Route 67 and Underpass Road only));
(b)
Requiring that buildings be provided with potable water (Ex, D,

App. B, Sec. 5; Ex. E, Sec. 7A.4.A);
(c)
Providing for on-site sewage disposal facilities (Ex. D, App. B, Sec.

5; Ex. F, Sec. 7A.4.B);
(d)
Containing provisions for correction or failure of such on-site septic

systems (Ex. D. App. B, Sec. 5; Ex, E Sec. 7A.4.C [notably,
requiring that notice of such failure shall be given to the owner of
the property or the tenant or occupant of the property]);
(e)
Requiring compliance with the New York State Uniform Fire

Prevention and Building Code (Ex. D, App. B, Sec. 6; Ex. F, Sec.
7A.5);
(I)
Requiring that construction shall begin within one (1) year from
final approval and issuance of all required permits. In the case of
the Schultz Industrial Park, FIR. Schultz, his successors and
assigns and in the case of the CIP The developer, his or her
successors and assigns shall be solely and exclusively responsible
for obtaining any permits required to commence development of the
land as authorized by this law. (Ex. D, App. B, Sec. 7; Ex. E, Sec.
7A.6.A);
(g)
Providing that nothing in this law shall be construed to satisfy the

obligations of any person to obtain any governmental approval or
permit from any governmental agency other than the Town of
Ballston for proposed activities (Ex. D, App. B, Sec. 7; Ex, F. Sec.
7A.6.B);
(h)
Requiring that roads and utilities within the developments shall be

installed at no cost or expense to the Town, (Ex. D, App. B, Sec.
8; Ex. E, Sec. 7A.7;); and
(i)
Requiring that the provisions of the zoning law relating to building

permits, certificates of occupancy, interpretations, variances, special
permits and violations shall apply to all uses and proposed uses,
that the laws shall be administered in accordance with the Ballston
Site Plan Review Law; and that construction within said
12
developments shall be subject to review and approval by the Town

of Ballston Plaiming Board according to the standards and criteria
established in the Town of Ballston Site Plan Review Procedures.
(Ex. D. App. B. Sec. 10; Lx. E, Sec. 7A.6.C).
69.
Compliance with Town legislation relating to subdivision of land is not required by
either law. (see Ex. D. App. B, Secs. 7. 10; Ex. E. Secs. 7A.6B. 7A.6.C)
70.
Many of the foregoing provisions of these local laws are present in other PDDs
subsequently enacted by the Town (all of which, like the Schultz Industrial Park, are known as
Parks), but almost none of these regulations are present in the other zoning districts contained
in the 1985 Zoning Law or its later permutations.
71.
The Towns present Zoning Law (Zoning Law) is derived from the 1985/6
Zoning Law. portions of which are discussed supra. The present Zoning Law is codified as
Chapter 138 of the Towns Code, which codified version erroneously continues to contain L.L. 320l3.
72.
The 2006 Zoning Law defines use as

This term is employed in referring to the purpose for which any
buildings, other structures or land may be arranged, designed,
intended, maintained or occupied; any occupation, business activity
or operation conducted (or intended to be conducted) in a building
or other structure or on land. The term permitted use or its
equivalent shall not be deemed to include any nonconforming use or
use requiring a special use permit.4
(Cli. 138,
73.
138-3).
The 2006 Zoning Law strictly limits the number of uses per lot as follows:
138-113. One use per lot
As discussed. infra, this law was nullified by Decision and Judgment of the Saratoga County Supreme
Court on July 3,2014.
This definition was not affected by L.L. 3-20)3 and remains valid.
13
Except in the Mixed Use Center Districts, Business Highway

Districts I and 2. TND. or in Planned Development Districts, only
one principal use per lot shall be allowed. For residential lots, no
more than one single-family detached dwelling shall be allowed on
any one lot.5
(Ch. 138,
74.
138-113).
The CIP is not located in the Zoning Laws Mixed Use Center District, Business
Highway District, or in the TND.

75.
Neither the CIP nor industrial parks are listed as permitted uses, or as special
uses, in the Allowable Use Table contained in the 2006 Zoning Law.
76.
The Town has revised portions of its Zoning Ordinance 45 times since 1985.
77.
Since 1985, the Town has never revised the definition of or location of
manufacturing as a permitted use.

Dolomite Submits its Site Plan Application to the Town in 2011
78.
On or about June 6, 2011, Dolomite submitted an application to the Town Planning
Board for site plan approval for a blacktop plant in the CIP. A copy of Dolomites site plan
application is attached hereto as Exhibit F.
79.
As required by statute, the Town Planning Board referred Dolomites site plan
application to the Saratoga County Planning Board (SCPB).

$0,
The SCPB determined that Dolomites site plan application was a local matter and
would not have any significant countywide or inter-community impact. A copy of the SCPBs
determination dated July 26, 2011 is attached hereto as Exhibit C.
81.
On August 31, 2011, the Town Planning Board held a public meeting relating to
This regulation was not affected by L.L. 3-2013 and remains valid.
14
Dolomites site plan application.

82.
At that meeting, Town Board member Timothy Szczepaniak (Szczepaniak)
spoke out against Dolomites project, stating that tiltimately, I really urge the Planning Board to
vote against this project. You know, ultimately, its not the right place for our town. A copy of
the Transcript of the August 31, 2011 Planning Board meeting is attached hereto as Exhibit H.
83.
At the very same meeting, Goslin also spoke out against Dolomites project, stating
that I stand in opposition to this plant and I would urge you to vote against this plant (see Ex.
H a142, 45).
84.
Szczepaniaks August 31. 2011 barely disguised direction to the Planning Board.
in which he claimed to be speaking as a concerned resident, epitomizes both the concerted

approach and disposition of the Town of Baliston toward Dolomites project (see E. H at 51).
85.
Contrary to Szczepaniaks instruction to the Planning Board, and at the same
hearing, the Chairman of the Planning Board, Richard Doyle, noted, among other things, that:
You know, it is an authorized site. Its been approved by the County and, consequently, you have
to come up with a reason why you cannot have this. It has to have some detrimental effect. (see
Ex, H at 40).
86,
Between August 2011 and Januan 2012, Dolomite incurred significant expenses
in support of its site plan application and in responding to questions and requests for information
from the Planning Board, but its site plan application for its permitted use continued to progress.
Szczepaniak and Goslin Target Dolomites Project and Promise Voters that it is Unnecessan
to Let the Towns Lawful Process Work
87.
Although Dolomite was unaware of it at the time, its site plan review process was
destined to halt due to the acts of newly elected member of the Town Board, Goslin, who along
15
with Szczepaniak, had campaigned on a platform that included specific opposition to Dolomites
project, and wanted to exclude Dolomite from the Town, A copy of Goslins and Szczepaniaks
publicly distributed campaign literature from November 8,2011, which demonstrates their animus
to Dolomites project in particular. follows:
Like most of you, we are opposed Lathe Asphalt Plant.

We will vote on any proposal for an Asphalt plant
So close to our residents]
Envrronmcntal risks, a handful of jobs and an added stress
to the problems on Route 67, fs not our opinion of smart growth
-Patty Southworths let the process work- speaks volumes.
-The plannng board will meet after the election?
WE KNOW WE ARE RIGHT ON THIS ISSUE AND
am
ON TUESDAY, NOVEMBER
LET YOUR VOTE COUNT!
Sincerely,
PETE CONNORS: Candidate for Supervisor
TIM SZCZPANIAK: Town Council
BILL GOSLIN: Town Council
16
88.
The campaign flyer is the sine qua non of the malicious intent that Goslin and
Szczepaniak held for Dolomites project.

89.
Patty Southworth, identified in the flyer as stating let the process work, was the
then-Town Supervisor and had publicly stated that Dolomites site plan application was before the
Planning Board and lawfully subject to its process.
90.
Rather than letting the process work. Goslin and the Town Defendants began a
concerted plan to redefine the process and change it to one in which Dolomites lawful project
could not be built.
91.
On February 7,2012, without first or ever contacting Dolomite, but referencing the
Dolomite pending site plan application, Goslin, who was now a Town Board member, stated in his
second Town Board meeting that he wanted to change the Towns zoning to restrict what he called
heavy industry. A copy of the Meeting Minutes of the February 7. 2012 Town Board meeting
is attached hereto as Exhibit I.
92.
As evidenced by the content of articles written by Goslin around the same time, the
reason for the proposed amendment was to prohibit Dolomites project.
Even the public
recognized that the zoning amendments were adopted solely in an attempt to prohibit Dolomites
asphalt plantP
93.
On February 18, 2012, Goslin published an article in the Dcxliv Gccene. the official
See Transcript, Town Board Meeting September 24, 2013 at 14, 16-19, 21-22, 24-25; Transcript, Town
Board Meeting May 13, 2014 at 5, 17-18; Transcript, Town Board Meeting, September 30, 2014 15-17,
18-19,23 (noting public comments made by residents during Town Board meetings regarding L.L. No.32013 and L.L. No. 2-2014, all referencingthat Dolomites project was the focus ofthe zoning amendment,
including whatever the Town has to do to keep Dolomite out of our neighborhood. 100 percent we feel as
a family, it should be done, Transcript. Town Board Meeting May 13, 2014 at 5. 1 really applaud the
concerned
spirit and the energy behind what you are doing on this asphalt plant, Id. at 17-18, and I am
regarding the proposition for Dolomite, Transcript, Town Board Meeting September 24, 2013 at 25).
.
17
Town newspaper. titled Zoning should never allow an asphalt plant in Ballston Lake. A copy
of the February IS. 2012 news article is attached hereto as Exhibit J. The article goes on to say
that
Like The Twilight Zone, the residents of Ballston Lake
went to bed in their lakeside homes and woke up in the Asphalt
Zone, No, this was not a dream. The quiet lifestyle of the lake
community is now threatened by an asphalt plant proposed for the
Curtis Industrial Park.
One of the reasons the site was chosen for this plant was that
the park is zoned by the Town of Ballston as industrial, and allows
manufacturing or to be more specific. heavy industry.
It is time to correct this. We simply change the word
manufacturing to light industrial and define light industrial
using language from zoning laws in any of our surrounding towns.
We also need to limit the expansion of existing heavy
industries, like the proposed asphalt plant. It may be too late to stop
this plant, but we can minimize the impact of the asphalt zone by
restricting expansion.
-
(Ex. J).
94.
Goslin published the same article in the Balls/on Journal and Schenecwdy County
Spotlight. Copies of the February 21, 2012 Bailsion Journal and March 1. 2012 Schenectady
Couno Spotlight articles are attached hereto as Exhibits K and L respectively. .All three
articles were authored by Goslin not in his capacity as a citizen, but as Councilman, Town of
Ballston.
The Planning Board issues a Positive SEORA Declaration in Contravention of its Own
Consultants Opinion
95.
Three weeks after Goslin publicly stated that he wanted to change the zoning law
to bar heavy industry, the Planning Board suddenly issued a declaration that was contrary to the
conclusions of its own consultants as to Dolomites project:
The consultants hired by the Planning Board prepared a New York
1$
State Environmental Quality Review Act (SEQRA) negative

declaration for the project. Contrary to the consultants opinion.
on February 29. 2012. the Planning Board issued a positive
declaration under SEORA. The positive declaration required the
completion of an Environmental Impact Statement (ElS) before
the project could move forward.
(see infra Ex. HH at 3) (emphasis added).
96.
With its site plan application for a permitted manufacturing use in the Industrial
District having inexplicably received a SEQRA positive declaration, Dolomite was faced with the
prospect of having to complete, at a significant expenditure of time and money, an Environmental
Impact Statement (EIS) for the blacktop plant even though the use of the site for this purpose
was an expressly permitted use.
Goslin Proposes Amending the Towns Zoning Law
97.
About two weeks later, with Dolomites site plan application now tied up in what
had become a greatly, and needlessly, magnified SEQRA process, Goslin now formally proposed
amending the Town of Ballston zoning law at a Ballston Town Board meeting. A copy of the
Town Board Meeting Minutes from March 6,2012 is attached hereto as Exhibit M.
98,
In discussing his amendment, Goslin specifically referred to the Dolomite site plan
application, and stated further that he had attended a recent Planning Board meeting where some
residents opposed the Dolomite plant (see Ex. M at 6).
99.
In response to Goslins comments, the then-Town Supervisor Patty Southworth
expressed concerns about Town Board discussion of a specific project pending before the Planning
Board and the Town Boards inappropriate interference with
and influence in
the Planning
Board process (see Ex. M at 6 [Supervisor Southworth noting her bconcerns about talking about a
specific project that is before the Planning Board, and stating, Jilt is their decision and it should
19
not be influenced by the Board. The Planning Board is working hard to do what is best for the
Town. They are guided by an experienced attorney.]).
Newspaper Coverage Clarifies the Motive and Animus Motivating the Goslin Amendment
100.
After the meeting, Goslin was quoted in a news article as slating that the Dolomite
Corporations asphalt plant project in OP highlighted flaws in the towns zoning laws. A copy
of the March 14, 2012 Bailsion Journal article entitled Dolomite. Ballston Development eyed,
is attached hereto as Exhibit N.
101.
The article further states that [ajccording to opponents, including Goslin,
Dolomit&s plant will not be a major employer in the region, will adversely impact an already
heavily congested Route 67 corridor and is suspected of being a polluter (Ex. N).
102.
Finally, the article quotes Goslin, reaffirming his representations that the Dolomite
plant would not be affected, stating I cant do anything about Dolomite, he said. But I can try
to prevent their expansion or other plants from moving in. (Ex. N) (emphasis added).
103.
In the same article, then-Town Supervisor Southworth [felt] assured the
comprehensive plan will guide the towns development, and that the industrial zone will remain
and that businesses within the zone should be allowed to expand (see Ex. N).
104.
As to Dolomites particular project, Ms. Southwonh said Jwje have a project that
must go through the process as it stands (see Ex. N).

Dolomite Relies on Goslins Reassurances
105.
About a month later, Goslin moved to approve a draft resolution to revise the zoning
ordinance to include his proposed amendments. A copy of the Meeting Minutes of the May 1.
2012. Town Board Meeting is attached hereto as Exhibit 0.
20
106.
In the meantime, and in reliance upon the representations of Councilman Goslin
and the Town Board that the amendments would not affect its processing site plan application,
Dolomite continued to comply in good faith with the ongoing SEQRA process that had been vastly
enlarged as the result of the Planning Boards positive SEQRA declaration issued contrary to the
conclusions of its own consultants.
107.
On November 28, 2012, the Planning Board adopted its final scoping document for
Dolomites project.
The scoping document identified the reviews, studies and components
necessary to the preparation of Dolomites Draft ES. A copy of the November 28, 2012 Planning
Board Meeting Minutes is attached hereto as Exhibit P.
108.
In continued reliance upon Goslins representations, Dolomite began and continued
to conduct the expert studies identified as necessary by the scoping process.

109.
Notably, none of the expert studies not one indicated any adverse environmental
-
impacts from construction of the blacktop plant within the CIP.

110.
During a March 26, 2013 Town Board meeting, Goslin again reiterated that his
proposed amendments will not change anything already in process. The specific language of this
zoning change will keep things from expanding. A copy of the March 26. 2013 Town Board
Meeting NI mutes is attached hereto as Exhibit
111.
Q.
The very next month, on April 30,2013, the Town Board convened a public hearing
on Goslins proposal to amend the zoning law.

112.
At the public hearing, Dolomite objected to the proposed legislation out of a
concern that the proposed amendments would somehow adversely affect us sue plan application,
which had been held up in the approval process for almost two years. despite Goslins public
statements to the contrary.
21
Town Supenisor Patricia Southwonh, sharply critical of the legality of the
113.
amendment, stated at the public hearing that [for those

Plan process
[1
who sat through the Comprehensive
this is spot zoning and that the right way to do this was to open up the
Comprehensive Plan process and start again. That is the way legally it should be done. A copy
of the Town Board Meeting Minutes of April 30, 2013 and Certified Hearing Transcript of April
30, 2013 Town Board Meeting are attached hereto as Exhibit It
114.
Two months later, Dolomite submitted its Draft EIS to the Planning Board. A copy
of the Draft EIS dated June 27, 2013 is attached hereto as Exhibit S.
115.
The Dolomite Draft EIS contained all the expert studies required by the Planning
Board as necessary components identified in the scoping process, and obtained at Dolomites
expense. The expert studies included, among other things, evaluation of potential air,
transportation, recreational resources, visual, noise, odor, public health, soils, geology, water,
vegetation and wildlife, cultural resources, and utilities impacts related to construction and
operation of the blacktop plant.
116.
The Dolomite Draft EIS concluded, after the conduct of these studies, that
construction and operation of the blacktop plant in the CIP would not result in any adverse
environmental impacts (see Ex. S at 3-8).
117.
A month after the Dolomite Draft FIS was submitted to the Planning Board,
Councilman GosLin again stated, consistent with his March 26, 2013 statement, that Dolomites
submitted proposal would not be affected by a zoning change now (his proposed zoning
amendment would not affect Dolomites pending site plan application). A copy of the July 29,
2013 article from Daily Gazeite, titled Town eyes curbs on heavy industry, quoting Goslins
statements is attached hereto as Exhibit T.
22
118.
This statement was made the day after the Saratogian ran a newspaper article
entitled Public hearing on Ballston asphalt plant set for Tuesday. A copy of the July 28, 2013
article is attached hereto as Exhibit U. The article contains numerous statements in which Town
Supervisor Patti Southworth again commented upon the defects in L.L. No. 3-20 13, the particular
attack on Dolomite, as opposed to industry, was clarified, and the motivation of the primary group
spearheading the attack was brought into question:
(a)
(b)
(c)
Town Supervisor Patti Southworth said before the town makes

such substantial changes, its comprehensive plan should be opened
for review.
Southworth also said the proposed changes could be classified as
spot zoning, a rezoning tactic that can be illegal.
The Dolomite Group submitted its initial application for an asphalt
plant to the Town in June 2011. In the two years that followed, the
company has faced an onslaught of criticism 1
The group leading the [1 charge is Citizens for a Clean
Environment
and questions have been raised over who exactly
Citizens for a Clean Environment represents. The law firm
Caffrey and Flower has represented Citizens for a Clean
Environment in letters to the town Planning Board, and also the law
firm Little & OConnor, which has represented D.A. Collins
Construction Co. in the past. D.A. Collins has an asphalt plant in
Saratoga Springs and is a direct competitor of Dolomite.
It does set to question exactly who theyre representing
Southworth said, adding that she is not the only person wondering
who Citizens for a Clean Environment represents and if this is
actually a turf war
David Pierce, who started Citizens for a Clean Environment, said
he doesnt know who pays for Caffrey and Flower attorney Claudia
K. Braymers services.
.
(d)
(e)
(I)
Goslin Recants His Statements Regarding the Amendments Impact upon Dolomites Proieet
119.
Two days after the article (and one day after Goslins July 29, 2013 statement that
Dolomite would not be affected). Councilman Goslin suddenly needed to clarify his previous
statements and stated that his legislation could in fact stop the Dolomite project. A copy of the
23
Town Board Meeting Minutes from July 30, 2013 is attached hereto as Exhibit V.
120.
At that point. Dolomite had spent more than two years seeking approval of its
blacktop plant, an expressly permitted use in the CIP located in the Baliston Industrial District,
and had submitted hundreds of pages of analyses and studies that without exception demonstrated
that construction and operation of the proposed blacktop plant would not result in any adverse
environmental impacts.
121.
Dolomites expenses for the consultants, engineers, attorneys, surveyors and other
professionals who appeared before the Planning Board and prepared the necessary studies and
environmental review documents that the Town deemed necessary
at that point
exceeded
S845,000.00.
The Planning Board Demands Further Revisions to the Draft EIS in a Targeted Effort to
Delay Processing of the Site Plan Application While L.L. No. 3-2013 was in Process
122.
Although the environmental, engineering and other experts had concluded that
Dolomites site plan application for the blacktop plant would not result in any adverse
environmental impacts, in August 2013 the Planning Board requested that additional information
be provided and that additional revisions to the Draft EIS be completed.
123.
Dolomite completed significant work to modify the Draft EIS in August and
September 2013.
124.
Dolomite submitted its revised Draft EIS to the Planning Board on September 24,
2013. A copy of the revised Draft EIS dated September 24, 2013 is attached hereto as Exhibit
125.
Pursuant to SEQRA (6 NYCRR
617.9[aj[21[ii]), the Planning Board had thirty
(30) days, or until October 24, 2013, to determine the adequacy of the resubmitted Draft EIS.
24
126.
Simultaneous with Dolomites Draft FIS supporting the siting of a blacktop plant
in the Towns Industrial District, in an industrial park that the Town had expressly identified as a
preferred location for such a use, Goslin and the Town Board were haphazardly attempting to
amend the Towns Zoning Ordinance, but not its Comprehensive Plan.
The Town Boards Rushed and Defective SEORA Process for L.L. No. 3-2013
127.
On the same day that Dolomites Draft EIS. incorporating the revisions demanded
by the Planning Board, was submitted, the Town Board resolved to adopt a SEQRA condition
negative declaration with respect to L.L. No. 3-2013. A copy of the Certified Hearing Transcript
of the September 24, 2013 Town Board Meeting is attached hereto as Exhibit X.
128.
The Town Board adopted the condition negative declaration without informing
the public as to what law the Town Board was considering or even as to what law the conditioned
negative declaration applied (see Ex, Y at pp. 30-3 1).
129.
The official minutes of the Town Boards September 24, 2013 meeting do not
reflect a SEQRA condition negative declaration being adopted, but rather a Negative SEQRA
Declaration. A copy of the Meeting Minutes of September 24, 2013 Town Board Meeting is
attached hereto as Exhibit Y.
130.
The requirements for and effect of a SEQRA condition negative declaration are
wholly distinct from a SEQRA negative declaration. See 6 NYCRR 617.7(d) and 6 NYCRR
617.7(a)(2).
131.
It was only after the Town Board had voted to conclude the SEQRA process as to
its zoning amendment that the Town Board informed the public as to the substance of L,L. No. 320 13.
25
132.
The public was therefore barred from any meaningful participation in the process.
Coslin Forces Zoning Amendment to Permit his Preferred Unpermitted Uses

133.
The Towils actions with respect to other proposed projects in Baliston also
evidence the Towns ad hoc amendment of its zoning law to accommodate the whims of its
representatives.
134.
On October 29, 2013, the Town Board passed L.L. No. 4-2013 amending the
Towns Zoning Law to permit micro distilleries in the Business Highway District I & 2. A copy
of L.L. No. 4-2013 is attached hereto as Exhibit Z.
135.
A November 1, 2013 article published in the Sara!ogian establishes that L.L. No.
4-20 13 was adopted solely to permit a specific company, High Rock Distillery, to locate a microdistillery in the town. A copy of the November 1, 2013 news article is attached hereto as Exhibit
136.
The article states that jt]o bring in new business, the town has changed the zoning
of a particular area to allow a micro-distillery to locate there. The article goes on to say that
Councilman Goslin encouraged [High Rock Distillery to locate in Ballston. despite the fact that
micro-distilleries were not a permitted use in the Business Highway District I & 2 at the time, and
that Goslin believes this is the type of business the town is seeking (see Lx. AA).
137.
Prior to the adoption of L.L. No. 3-20 13, at a Town Board meeting on July 30,
2013, Goslin (i) introduced the members of High Rock Distillery, LLC to the Town Board, (ii)
noted that the proposed location of the distillery would require a zoning change since
microbreweries were not a permitted use in the area of the Town desired by High Rock Distilleries,
and encouraged the Board to amend the Town Code to permit the I-ugh Rock Distillery to locate
26
in the town, later stating that I think this type of industry is both a tourist attraction and a potential
for a reasonable-sized business in our town. Our town can use the kind of business that will attract
people to our town (see Exs. X and AA).
138.
Zoning decisions are required to be made based on more than the personal views
and desires of a single Town Board member.

Dolomites Challen2c to L.L. No. 3-2013
139.
On September 24. 2013. the same day that Dolomite submitted its revised Draft
EIS to the Planning Board, the Town Board adopted Goslins zoning amendment, denominated as
L.L. No. 3-2013, which purported to prohibit Heavy Industrial Uses, including the manufacture
of blacktop, within the Industrial District, in which the CIP and Dolomites project are located.
(Ex. Y).
140.
Local Law No. 3-2013 was adopted despite the fact that as far back as 2012, the
Town recognized that its Comprehensive Plan needed to be updated, but rather than taking the
proper steps to revise the Comprehensive Plan, chose to haphazardly amend the zoning law in a
concerted effort to stop Dolomites lawful project.
141.
Under New Yorks Municipal Home Rule Law, a local law should have an effective
142.
Section 27, Subdivision 3 of the Municipal Home Rule Law, provides that
date.
notwithstanding the effective date of any local law, a local law shall not become effective before
it is filed in the Office of the Secretary of State.
143.
Local Law No. 3-2013 was filed with the Secretan of State on October 24, 2013.
A copy of the filed L.L. No. 3-20 13 is attached hereto as Exhibit RB.
27
144.
Before L.L. No. 3-2013 even became effective, the Planning Board stopped
processing Dolomites site plan application on the basis that Dolomites hot mix plant was no
longer a permitted use (see Ex. DD at 10-11 [Planning Board Attorney Peter Reilly stating that
within days of your submitting a revised draft, Environmental Impact Statement, they passed the
local law.
So as a practical, if not a technical legal matter, thats when the board stopped
working.] and Ex. EE at 18-19 [Reilly further stating 1 just want to clarify as far as the 300-some
plus days that you refer to. As this board is well aware, and I think everyone else is probably well
aware, the revised DEIS was dropped off at town hail. I think, on September 24, 2013.
Consequently, that was the same day that the town board adopted what is Local Law 3 of 2013,
which eliminated the proposed project as an allowable use within the zone. So I think its quite
understandable and legally correct and
the board ceased its review.]). A copy of the transcript
from the August 27, 2014 Planning Board Meeting is attached hereto as Exhibit CC. A copy
of the transcript from the August 27, 2014 Planning Board Meeting is attached hereto as Exhibit
145.
In response, Dolomite commenced a hybrid declaratory judgment
Article 78
proceeding in state court seeking a judgment declaring and annulling as void L.L. No. 3-2013 on
the grounds that it was arbitrary and capricious. discriminatory, in violation of lawful procedure,
confiscatory and ultra vires. A copy of Dolomites First Amended Verified Complaint-Petition
dated March 21, 2014 is atiached hereto as Exhibit EE.
146.
The Town joined issue, contesting Dolomites right to that relief.
147.
Despite its awareness of the myriad of defects in the law, both before and after the
filing of Dolomites challenge on Januan 22, 2014, the Town refused to withdraw L.L. No. 32013 because to do so would have permitted Dolomites site plan application, which had at that
28
point been pending for years before the Planning Board, to progress.
In conjunction with its response to Dolomites L.L. No. 3-2013 challenge, the Town
148.
submitted the affidavit of Mary Beth Hynes, a former Town Board member, which served only to
further clarify that the Town Board decided that heavy industry should no longer be permitted
in the Industrial District only after applications, such as Dolomites, were permitted to
proceed. A copy of the Affidavit of Hynes is attached hereto as Exhibit FF.
Ms. Hynes stated, in the context of the Towns thinking when it considered the
149.
Comprehensive Plan in 2006, that:

It was decided by the Town Board to wait until a later time to deal
with industrial zone issues. The delay was necessitated by the need
to determine what possible spin-off opportunities Global Foundries
might present to the Town of Ballston.
(Ex, FF, 92).
Thus, not only did Hynes admit that the Board intended to engage in ad hoc, or
150.
spot. zoning
by addressing each issue as it arose rather than in furtherance of a comprehensive
plan for the Town
but her statements also evidence the Town Boards disparate treatment of
Dolomite as it is clear that industrial uses owned by Global Foundries would be acceptable to the
Town, while those owned by others such as Dolomite would not.
-
151.
While the litigation challenging L.L. No. 3-2013 was pending before the Saratoga
County Supreme Court. the Town Board actually commenced the process to adopt an identical law
(L.L. No. 2-2014) intended to reenact L.L. No. 3-2013
despite the fact that L.L. No. 3-2013
was on the books and in effect.
152.
Transcripts of the public hearings for L.L. No. 2-2014 are telling, because they read
as if L.L. No. 3-2013 never occurred, because the Town knew the law to be defective and that it
29
would eventually be nullified, even though the Town was relying upon its existence as grounds to
halt processing Dolomites site plan application and forcing Dolomite to litigate its invalidity.
153.
For example. see Exhibit GG, transcript of a Town Board May 13, 2014 hearing
where Town Attorney Walsh describes L.L. No, 2-20 14 as:

If I may, just to let evenone know what the proposal here is,
currently there is an industrial-zoned area in a part of trnvn we
described within our public notice that the industrial zoned area is
open for all industrial zoning. So anything that would fit under the
industrial uses would be allowed under our zoning. The Board is
proposing this Local Law, and we are having a public hearing.
Instead of having it open to all industrial uses, we are narrowing
down the proposed uses that can go into the industrial area to light
industrial.
(Ex. GG at 9-10) (emphasis added).
154.
At the time of this public hearing, L.L. No. 3-2013, which had replaced the long
standing Industrial District with a Light Industrial Zone had neither been withdrcnvn nor
nnahdaied.
155.
This was not simply a misstatement by Town Allomey Walsh, who reiterated the
point:
If I may, just to be clear, the purpose of this public hearing is to get public
feedback into, again, changing from the industrial zoning in the north part
of the town where its been zoned industrial to limiting it from full industrial
zone to the narrowing of light industrial.
(Ex. OG at 13) (emphasis added).
156.
Walsh explained further:

What we did currently under the town law. we passed it in September of
2013, and there were some conflicts, and the conflict was that we said that
you could have, you could get by with certain aspects with a special use
permit. We also prohibited under our list of what is prohibited in them. We
wanted to make it clear under the new, what we are doing now, the light
industrial regulations are
.
30
(Ex. GG at 15-16).
157.
Although it was clearly aware, as evidenced by its own actions, that L.L. No. 3-
2013 was defective, the Town, for the purpose of blocking Dolomites lawful action, frivolously
refused to withdraw the law, and forced the Saratoga County Supreme Court to nullify it (see Ex.
RH).
158.
After engaging in litigation for more than five months
Dolomit&s site plan application was not processed by the Planning Board
during which time

on July 3, 2014, the
Saratoga County Supreme Court nullified and invalidated L.L. No. 3-20 13. A copy of the July 3,
2014 Decision and Judgment is attached hereto as Exhibit HH.
Post-LE. No. 3-2013-Nullification Treatment of Dolomites Planning Board Application

159.
As it had prior to the nullification of L.L. No. 3-2013, the Town Board continued
its efforts to adopt in L.L. No. 2-2014 which, as explained by the Town attorney. supra. was
intended to be a minor image of the nullified 2013 amendment.
160.
Now understanding the Towns intentions and immediately upon the nullification
of L,L. No. 3-2013. Dolomite requested that the Planning Board resume processing its site plan
application, accept the Draft EIS as complete, and commence the public comment period. A copy
of Dolomites July 9. 2014 correspondence is attached hereto as Exhibit II.
161.
At the July 30, 2014 Planning Board Meeting, however, the Planning Board refused
to accept the Draft EIS as complete and instead advised Dolomite that it was taking an additional
twenty (20) days to review the Draft EIS and provide comments before issuing a detennination
(see Ex. CC).
31
162.
By this point, the Planning Board had had Dolomites latest DEIS for more than
three hundred (300) days. including thirty (30) days when L.L. ?o. 3-20 13 was not yet effective
but the Planning Board inexplicably stopped processing Dolomites site plan application (see Ex.
CCat 10-li).
163,
The Planning Board had also had a further twenty-one (21) days from the time
Dolomite requested to be placed on the Planning Boards agenda until the July 30th meeting, yet
even with all this time, the Planning Board took no action on Dolomites site plan application
during that time.
164,
During that same meeting, and apparently concerned only with putting the brakes
on Dolomites project at any cost, one of the Planning Board members inappropriately asked
Dolomite whether an appeal by the Town of the Courts decision nullifying LL. No. 3-20 13,
would stay the Planning Boards ability to continue processing Dolomites site plan application.
(see Ex. CC at 14).
165.
On August 20, 2014, Dolomite received comments from Ct. Male regarding the
completeness of the Draft EIS, which could only be characterized as requests for tie mininils
revisions to the Draft EIS, requesting such items as (i) deleting the
I Visual
impacts Analysisj
from the Table of Contents along with the mention that this Appendix has been deleted from the
DEIS; and (ii) adding nine acronyms to the list of abbreviations. A full copy of the
correspondence from CT. Male is attached hereto as Exhibit JJ.
166.
Dolomite provided responses to those tie minirnis comments on August 26, 2014.
A copy of Dolomites August 26, 2014 correspondence is attached hereto as Exhibit KK

(responding that [wihile the letter itself states that its purpose is for a completeness review, the
comments contained within the letter do not appear to be based upon a comparison of the content
32
of the Draft Environmental Impact Statement (DEIS) and the final scoping document).
167.
On August 27, 2014, Dolomite again appeared before the Planning Board and
requested that the Planning Board accept the Draft EIS as complete and commence the public
comment period (see Ex. DD).
168.
During the August 27, 2014 meeting, Dolomite provided testimony responding to
each of CT. Males comments and the lack of a basis from which to determine the Draft EIS
incomplete, stating that:
But the only comments in the CT. Male letter is a request to
delete an appendix and- thats number one. Number two is a request
That is simply a
to add six or seven additional abbreviations
ministerial comment. It does not have anything to do with
completeness.
The Ithirdj comment from CT. Male is in regard to water
resources or wetlands and asks for a discussion [] or a distinction of
what are called jurisdictional wetlands from nonjurisdictional
wetlands. And that can certainly be provided. The explanation is
actually in our response. But, again, thats a substantive comment
regarding the content of the EIS. It has nothing to do with the
completeness. The completeness determination is you compare the
what has been provided to what was to what the written scope
was.
The written scope asked us to address wetlands. We did so.
Ct. Male is now asking for a little bit of clarification on that issue,
which we are happy to provide, but its not a basis to not determine
the EIS complete and to allow public review.
Number four in their letter is simply a discussion of various
air quality regulations and is again, is a ministerial comment that
wouldnt provide the basis to not declare determine, [j the EIS to
be complete.
And then the fifth comment is simply to change the word
department to NYSDEC. Again, simply a ministerial comment.
.
(see Ex. DD at 10-12).
169.
To demonstrate the lack of basis for determining the Draft EIS as incomplete,
Dolomite quoted language from the SEQR handbook discussing the purpose of the EIS. the basis
33
for determining the adequacy of the Draft EIS, and the number of times a lead agency may request
a revision of the EIS.
Now, according to DEC and the SEQR handbook, the
question is, What is an EIS What should an EIS contain?
And this is a quote from page 118 of the SEQR handbook;
The EIS, therefore, needs to contain sufficient descriptions of the
proposed action and its setting to provide appropriate context for a
reader to understand the analyses of impacts, alternatives, and
mitigation but should not be encyclopedic or overly or an overly
technical document.
On page 133 of [the] DEC SEQR handbook, the question is
raised, What is the basis for determining the adequacy of the draft
EIS?
And it says, The lead agency should ensure that all relevant
information has been presented and analyzed but should neither
expect nor require a perfect or exhaustive document, A draft EIS
that is adequate to be accepted for public review should describe the
proposed action, alternatives to the action, and various means of
mitigating impacts of the action.
The draft 15 should identify and discuss all significant
environmental impact issues related to the action; however, the draft
ElS will not necessarily provide a final resolution of any of the
issues.
And finally, also what informs the discussion tonight on
page 134 of the SEQR handbook, theres a [1 question, [1 Is there a
limit on the number of times a lead agency may [1 reject a submitted
draft EIS?
Now C.T. Male is encouraging this board to reject it yet
again. And this is what [the] SEQR handbook says;
The goal of the lead agency in its review of the submitted
draft EIS should be to advance the review of the proposed project to
the public review phase; therefore, a lead agency should provide
sufficient guidance in the initial description of deficiencies to enable
the project sponsor to develop an acceptable draft EIS with one
revision effort and only reject a resubmission if that resubmitted
draft EIS still contains errors or omissions which are essential to the
publics understanding of the proposed project.
-
(see fix. DD at 12-15).
1 70.
One Town Planning Board member even agreed with Dolomite that the comments
were minor in nature and asked the Planning Board Chairman to move its site plan application
34
along (see Ex. FE at 26-27 [Board member Hayden stating that 1 think its as complete as its
going to get, so I would be willing to say its complete and move forward. I think the comments
are kind of minor, technical in nature, and I think, you know, we had
you know, let the public
review it, comment on it, and then, you know, get this thing moving forward one way or the
other.]).
171.
Despite Dolomites evidence that there was no basis under SEQR to declare the
Draft ElS incomplete, at its August 27, 2014 meeting the Planning Board once again refused to
accept the Draft EIS as complete and demanded more time to review the site plan application.
172.
In the meantime, the Town Board was preparing its record to support the upcoming
adoption of LL. No. 2-2014, including the Town Attorney ensuring that correspondence from the
law firm representing the mysteriously funded opposition group (see, Exhibit V) Citizens for a
Clean Environment be included in the records of the Town. A copy of the Meeting Minutes of the
September 11,2014 Town Board Meeting is attached hereto as Exhibit LL.
173.
Finally, on September 24, 2014, a year to the day since the Planning Board first
received the revised Draft EIS and more than three (3) years after Dolomites application was
submitted, the Planning Board accepted Dolomit&s Draft EIS as complete and set a date of
October 30, 2014 for the public hearing. A copy of the transcript from the September 24, 2014
Planning Board Meeting is attached hereto as Exhibit MM.
174.
This schedule was very convenient for the Town.
175.
Six days later, on September 30, 2014, the Town Board adopted L.L. No. 2-2014.
a mirror image of L.L. No. 3-2013 which had just been nullified. (see Ex. NN at 41). A copy of
the transcript from the September 30, 2014 Town Board Meeting is attached hereto as Exhibit
NN.
35
Dolomites Challen2e to L.L. No. 2-2014

176.
The next day, knowing that the hastily published public notice for L.L. No. 2-2014
was fatally flawed in that it pretended that L.L. No. 3-2013 had never been in existence, Dolomite
commenced a combined declaratory judgment action and Article 78 proceeding, via order to show
cause. challenging the enactment of L.L. iSo. 2-20 14 and requesting the Saratoga County Supreme
Court enjoin the Town from enforcing or applying L.L. No, 2-2014 to Dolomites processing
project.
177.
At a hearing on October 2, 2014, Judge Ann C. Crowell signed the Order to Show
Cause, but refused to issue a temporary restraining order on the grounds that Dolomites harm was
speculative because the Planning Board was still processing Dolomites site plan application.
178.
Within days of Judge Crowells Order, the Planning Board canceled the public
hearing for Dolomites site plan application once again stopping the review process. A copy of
-
the letter from the Planning Board Attorney Peter E. Reilly, Esq. to Adam Schultz, Esq. stating the
public hearing had been cancelled is attached hereto as Exhibit 00. A copy of the letter from
Planning Board Chairman Richard Doyle advising that the public hearing had been cancelled is
attached hereto as Exhibit PP. A copy of the Town of Ballston webpage on which the town
alert of the public hearing cancellation was posted is attached hereto as Exhibit
179.
QQ.
As a result of the Planning Boards actions, on October 20, 2014, Dolomite filed a
Motion to Renew with the Saratoga County Supreme Court, again seeking a temporary restraining
order against the Town. A copy of the Motion to Renew is attached hereto as Exhibit 1W.
180.
The Towns sole response to the Motion to Renew consisted of a memorandum of
lawreplete with inaccurate facts and references to unrelated parties and exhibits bearing no
cognizable relationship to the motionalleging that dismissal was warranted for failure to include
36
necessary parties. A copy of the Towns memorandum of law is attached hereto as Exhibit SS.
181.
On November 13, 2014, Judge Crowell issued an Order enjoining the Town from
enforcing or applying L.L. No. 2-2014 to Dolomites site plan application.
A copy of the
November 13, 2014 Order is attached hereto as Exhibit TT.

182.
The November 13, 2014 Decision and Order held that:

From the date of this Order until further Order of this Court and
pending the determination of Petitioners request for a Preliminary
Injunction, Defendants-Respondents and all other persons and
entities, known or unknown, acting under them, including their
delegated boards, and their successors in either their elected or
appointed capacities are hereby enjoined from enforcing or applying
L.L. No. 2-20 14 to Plaintiff-Petitioners application to construct its
proposed asphalt plant in the Curtis Industrial Park in the Town of
Ballston. which processing shall continue unabated and unaffected
by L.L. No. 2-2014 as of the date of this Order.
(Ex. TT).
The Towns Disparate Treatment of Dolomite as an Improvement in the CIP
183.
Recognizing the time and expense of litigation, as well as the merry-go-round
nature of having to challenge and nullif the Towns illegal enactments in order to move its
application forward only to have the Town enact the next roadblock, Dolomite sought an
alternative avenue of relief.
184.
On April 5, 2012, the Town had issued a statement that the uses in the CIP were
not actually uses, as that term is commonly understood in the context of zoning and planning, but
were, rather improvements, effectively treating the CIP as a PDD. A copy of the April 5,2012
letter is attached as Exhibit UU.
185.
The Towns April 5, 2012 letter further stated subdivision was not necessary for
either the CIP or for Dolomites hot mix plant because the plant, as with every other use in the
37
CIP, is not a use, but, rather, an improvement (Ex. VU).
186.
Once its site plan application had been halted by the adoption of the ill-fated L.L.
No. 3-2013, Dolomite sought to proceed under the Towns April 5. 2012 determination,
contending that its plant was an improvement, as opposed to a use, and that Local Law No. 3-2013,
which amended the list of permitted uses, did not and could not apply to the Dolomite application
to site an improvement. A copy of Dolomites March 24, 2014 correspondence is attached hereto
as Exhibit VV.
187.
The Town Planning Board responded by stating that the improvement analysis
applied only to the question of the applicability of subdivision law, and that all uses in the CIP
must be permitted and appear in the use table contained in the Zoning Law. A copy of the April
2,2014 letter from Planning Board attorney Peter E. Reilly, Esq. to Adam Schultz, Esq. is attached
hereto as Exhibit WW.
188.
Dolomite appealed to the Towns Zoning Board of Appeals from Planning Boards
determination that businesses already established in the CIP were improvements (and therefore
were not required to be permitted uses) while the Dolomite proposal was a (not permitted) use
under the yet to be invalidated L.L. No. 3-20 13.
189.
As established by testimony at the Zoning Board of Appeals July 2,2014 hearing,
Dolomite sought to proceed under the Towns April 5, 2012 determination, that the plant was an
improvement, as opposed to a use, and that Local Law No. 3-2013, which amended the list of
permitted uses, did not and could not apply to the Dolomite application to site an improvement. A
copy of the transcript from the public hearing, with the exhibits thereto, is attached hereto as
Exhibit XX.
190.
The Planning Board responded by stating that the improvement analysis applied
38
only to the question of the applicability of subdivision law, and that all uses in the CIP must be
permitted and appear in the use table contained in the Zoning Law. (Ex. XX at 12).
191.
Dolomite explained, via testimony, that the Towns analyses as to businesses within
the CIP were directly conflicted and unsupportable. The stance that the CIP is a use and the
businesses within the CIP were improvements and therefore exempted from subdivision
regulations, was and is irreconcilable with the diametrically opposed determination that what was
treated as an improvement in 2012 must now be treated as a use. (Ex. XX at 12-13).
192.
Upon information and belieI there are businesses in the CIP that do not appear on
the list of permitted uses contained in the Zoning Law.

193.
These businesses include (i) P&M Construction, located in Building 25A, who are
general contractors, construction & remodeling services; (ii) ST Services, located in Building 28C,
who are home builders; (iii) Malone Refuse, a demolition contractor located in Building 45,
Dempseys Auto, an auto repair & service center located in Building 31A, Gusters Autobody, a
car and auto repair, customizing and restoration center located in Building 28B; (iv) Vintage
Motorspods. an auto body repair shop located in Building 25C; (v) Northern Clearing, a right of
way clearing contractor located in Building 5; and (vi) Precision Environmental Services, a
hydrogeological engineering and contracting services firm located in Building 38.
194.
Dolomite testified ftwther that if each business within the CIP was a use, as opposed
to an improvement, the Zoning Law was clearly being violated in that the CJP is a single parcel,
which was never subdivided and the Zoning Law clearly constrains the number of uses on a single
parcel to a single use. (Ex. XX at 14).
195.
Moreover, if in fact the improvements in the UP are uses, then the Towns
subdivision of land laws apply, and state and Town major subdivision requirements relating to
39
roads, sewers and environmental review had not been complied with. (Ex. XX at 14).
196.
On the other hand, if the uses are improvements, within the principal use of an
industrial park, then the Planning Board would be required to continue processing Dolomites
application, as Local Law No. 3-2013 could not affect an improvement. (E. XX at 15).
197.
If the CIP was within a constructive PDD, then the conflict would be solved,
because multiple uses would be permissible on the single-parcel CIP without subdivision, and the
processing of Dolomites application would continue as the permitted uses for that PDD at the
time of its creation permitted hot mix plants. (Ex. XX at 16).
198.
In considering the matter, one member of the ZBA, who had been on the ZBA for
more than 20 years. stated that the ZBA dont get involved with the applications themselves from
the Curtis Industrial Park, because, for the most part, it requires site plan review and thats the
privilege of the Planning Board. (Ex. XX at 21).
199.
decision in
The ZBA Chairman Michael Lesniak indicated that he had improperly made his
UdVU!ICL
of the hearing on the mailer, stating that the ZBAs Determination on the
question was strictly the interpretation that I saw and planned it over with the board and they
tended to agree with that interpretation, too. (Ex. XX at 24).
200.
At the next meeting of the ZBA. the ZBA read its resolution containing its findings
into the record, and the resolution was passed 5-1, A copy of the transcript of the August 6, 2014
meeting is attached hereto as Exhibit YY.
201.
The ZBA made the following findings on the record (the Determination):
Number one, the Curtis Industrial Park is a single parcel, consists of
several leasehold parcels containing businesses whose activity
within the Industrial Zoning District were permitted uses under the
Town of Ballston Zoning Ordinance at the time of their approval.
Two, although subdivision approval is not required for the
40
businesses seeking to locale within the Curtis Industrial Park. the

activities conducted by such businesses must be permitted uses
under the ordinance.
Three, Thomas Johnsons April 5th, 2012, letter is consistent
with the ordinance as it was limited to the issue of whether
subdivision approval was necessary for businesses seeking to locate
within the Curtis Industrial Park.
Four, Local Law 3-2013, upon filing with the New York
State secretary of state on October 24th, 2013, terminated the
planning boards jurisdiction to process Dolomites application. As
such, local law removed Dolomites intended use as an allowed use
in the industrial zoning district.
(Ex .YY at 5-6).
202.
When asked by Dolomites counsel whether it was the Town ZBAs position that
the businesses in the Curtis Industrial Part are not uses separate and apart from the Curtis
Industrial Park, the ZBA responded in contradictory fashion, that it
was
[thatj there are uses separate and apart, that every business is a separate
the ZBAs position
use,
that the use is the
industrial park; anything can go in there. (Ex. YY at 8-9).

203.
The Town ZBA and Planning Boards comments, coupled with the Towns
adoption of the defective L,L. Nos. 3-2013 and 2-2014 as described hifra. evidence the Towns
selective and arbitrary application and enforcement of its land use laws as to Dolomites project.
204.
The ZBA proceeding is demonstrable evidence of everything that the Town has
done wrong with Dolomites project; it has tied itself in knots and expended untold sums of
taxpayer money all in an effort to impermissibly discriminate against Dolomites lawful use.
205.
While members of the Town Board may be personally opposed to Dolomites
project, the law requires that legal means be used for such opposition.
206.
Defendants have not used such means and should be held responsible for their
destructive actions.
41
(42 U.S.C.
207.
FIRST CAUSE OF ACTION

U.S. Constitution, Fourteenth Amendment
1983 Substantive Due Process as to Town Defendants)
-
Plaintiff repeats and realleges each and every allegation contained in Paragraphs
1 through 206 as if fully set forth herein.

208.
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution provides, in pertinent party, that no state shall deprive any person of life, liberty or
property, without due process of law.
209.
Section 1983 authorizes civil suits for equitable relief and money damages against
government officials acting under the color of government authority who subject individuals to
deprivation[sJ of any rights, privileges, or immunities secured by the Constitution and laws. 42
U.S.C.
1983.
210.
Dolomite has a valid property interest which is entitled to Constitutional protection.
211.
The deprivation of Dolomites valid property interest by Town Defendants was so
outrageously arbitrary as to be a gross abuse of governmental authority.

212.
Town Delndants conduct is also maliciously and improperly motivated as set
lbrth in Dolomites equal protection claim, in/ru, and other claims for relief.
213.
The governmental actions alleged in this Complaint by the Town Defendants were
outrageously arbitrary and made wholly without legal justification.

214.
The Town Defendants repetitive efforts to haphazardly legislate Dolomites
particular and lawful use out of town without reference to its Comprehensive Plan, while other
businesses in discrete areas of the Town were being rezoned for particular preferred uses, while
the Planning Board participated in the Towns frivolous delaying tactics, and the Zoning Board of
42
Appeals condoned those tactics by arbitrarily and capriciously treating the Dolomite project
differently from every other business in the CIP, was designed solely to prevent the completion of
Dolomites project in the Town.
215.
Town Defendants actions were taken with the intent of impacting Dolomite
individually, by arbitrarily delaying and preventing its project, without regard to the community
as a whole,
216.
Town Defendants actions in adopting L.L. No. 3-2013 and 2-2014 were
undertaken based on factors relating to, and calculated to inflict harm upon, Dolomites project,
rather than proper policy or community implications.
217.
Town Defendants activities have been aimed solely at unlawfully and depriving
Dolomite of its achievement of vested rights in its asphalt plant project.

218.
Under New York law, the actions of Town Defendants in willfully delaying,
misleading, and hindering Dolomite have resulted in Town Defendants being estopped from
claiming that Dolomite does not have vested rights in its asphalt plant project.
219.
Town Defendants bad faith and malicious delay and hindrance of Dolomites site
plan application has resulted in a estoppel which constitutes a legitimate claim of entitlement for
purposes of substantive due process.
220.
Town Defendants actions surrounding L.L. Nos. 3-2013 and 2-2014 were
shocking. abusive and completely arbitrary where Defendants knowingly and maliciously failed
to follow simple procedures required by their state and local laws to enact local legislation in an
effort to unlawfully prevent Dolomites right to construct its plant.
221.
Since June 6,2011, Dolomite has taken significant, specific acts demonstrating its
intent to construct its lawful asphalt plant, including engaging in the Town of Ballston site plan
43
approval process for its lawful project for over four years.
222.
Dolomite has spent well over $845,000 in engineering and environmental expert
fees, studies, reviews and application filing fees, as part of this process at the requirement of the
Town Defendants.
223.
In addition to considerable time and effort, Dolomite has also expended substantial
funds for consulting and attorneys fees in pursuit of its site plan application.
224.
Town Defendants have deprived Dolomite of the benefit of its property rights and
have caused Dolomite to suffer, and to continue to suffer. irreparable harm, damage and injury.
225.
Dolomite is entitled to compensatory damages against Defendants, for its out-of-
pocket expenses and lost profits associated with the asphalt plant, as well as interest, its reasonable
attorneys fees, and costs.
(42 U.S.C.
226.
SECOND CAUSE OF ACTION

U.S. Constitution, Fourteenth Amendment
1983 Substantive Due Process in Individual Capacity)
-

227.
Goslin acted outside of the scope of his authority and violated Dolomites
substantive due process rights under the United States Constitution.

228.
Goslin acted outside of the scope of his authority, influencing the Planning Board
to improperly and arbitrarily delay Dolomites site plan application in order to permit the hurried
and improper enactment of L.L. No. 3-2013, with the sole goal and intent of preventing Dolomite
from vesting rights to its lawful project.
229.
Upon information and beliel Goslin and other Town Board members conspired
44
with one of Dolomites competitors to prevent Dolomite from locating its hot
mix
asphalt plant in
the Curtis Industrial Park and entering the Ballston-Saratoga, New York market for asphalt
products.
230.
Upon information and belief. Goslin was aware that Citizens for a Clean
Environment was being funded by one of Dolomites competitors and conspired with Citizens for
a Clean Environment to prevent Dolomite from locating its hot mix asphalt plant in the Curtis
Industrial Park and entering the Baliston-Saratoga, New York market for asphalt products.
231.
Upon information and beliei Goslins actions were not related to any legitimate
governmental interest and had the elThct and/or intent to reduce competition in a cost-sensitive
market (see paragraphs 36-43, supra), benefit a third-party competitor of Dolomite and artilicially
inflate the price of asphalt purchased by the Town, its businesses and its residents.
232.
Goslin used the prevention of the Dolomite project as a political platform in his
election.
233.
Goslin made explicit and implicit promises that ifelected, he would interfere in the
administrative review of the Dolomite project.

234.
Using the imprimatur of his office, Goslin interfered in the administrative review
of the Dolomite project.

235.
During the pendency of the Dolomite site plan application at the Planning Board,
Goslins improper motivation was clearly expressed in his campaign flyer for a Town Board
position stating [Ijike most of you, we are opposed to the Asphalt plant. We will vote NO on any
proposal for an Asphalt plant [sjo close to our residents!
236.
As a member of the Town Board. Goslin could not have the authority to approve
or disapprove of Dolomites site plan application and could have no proper vote on the
45
application; that power rests with the Planning Board.

237.
Goslins actions on the Town Board were shocking and motivated by his political
238.
Goslin. without contacting Dolomite, but referencing the Dolomite site plan
anirnus.
application, stated that he wanted to change the Towns zoning (see Ex. I).
239.
On Febmarv 18, 2012. Goslin, an acting Town Board member, published an article
in the Daily Gazette, the official Town newspaper, titled Zoning should never allow an asphalt
plant in Ballston Lake. (see Ex. J).
240.
On February 29, 2012, less than two weeks after the article ran, and after Goslin
publicly stated that he wanted to change the zoning law, the Planning Board arbitrary issued a
Positive Declaration for Dolomites site plan application under SEQRA, rather than the negative
declaration recommended by the Towns own experts (see Ex. FIN at 3).
241.
Goslins actions were motivated by his expressed intent to hinder, delay and
interfere with the approval of Dolomites project, and those actions influenced the Planning Board
as to the review of Dolomites site plan application.
242.
On March 6,2012, during the period where Goslin knew that Dolomit&s site plan
application was tied up with additional SEQRA requirements, Goslin proposed amending the
Town of Ballston zoning law (see Ex. M).
243.
In fact, during this same March 6,2012 meeting on the proposed law, Councilman
Goslin specifically referred to the Dolomite site plan application and stated that he had personally
attended a recent Planning Board meeting where residents opposed the Dolomite plant (see Ex.
244.
The Town Supervisor expressed her concern that Councilman Goslin was
46
inappropriately discussing his interaction and interference with another administrative body
dealing with the Dolomite site plan application, specifically because the Town Board was aware
this application was currently pending before the Planning Board.
245.
The actions of Defendant Goslin, which were undertaken far outside the scope of
his authority as a member of the Town Board, as aforesaid lacked any legitimate reason and were
arbitrary, capricious, not rationally related to any legitimate government interest, improperly
motivated and conscience-shocking, in violation of the substantive due process guaranteed by the
Fourteenth Amendment to the Constitution of the United States of America.
246.
Defendant Goslins actions were so arbitrary as to constitute a gross abuse of
governmental authority.
247.
Dolomite is entitled to compensatory damages against Defendant Goslin, for its
out-of-pocket expenses and lost profits associated with the asphalt plant, as well as interest,
reasonable attorneys fees, and costs.
THIRD CAUSE OF ACTION
U.S. Constitution Fourteenth Amendment
(Section 1983 Equal Protection Against All Defendants)
-
248.
I through 247 as if fully set forth herein.

249.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that [nb state shall make or enforce any law which shall
deny to any
person within its jurisdiction the equal protection of its laws.

250.
Defendants have made numerous attempts to prevent completion of Dolomites
project.
47
251.
Upon information and belief, Defendants disparately treated and singled out
Dolomite for adverse treatment regarding its Baliston Spa project.

252.
The spectrum of such abuse is evidenced by the Defendants actions in
discriminating against Dolomites lawful project, refusing to apply the same longstanding
standards to the Dolomite project as were applied to other similarly situated businesses within the
UP and, instead, selectively singling out Dolomites project and treating it in a disparate manner
from the other businesses located in the CIP; issuing, dilatorily, in bad faith and with malicious
intent, a positive State Environmental Quality Review Act (SEQRA) declaration as to
Dolomites project in contravention of the determination of the Town Defendants own
consultants; repeatedly extending, dilatorily, in bad faith and with malicious intent, the processing
ol Dolomites site plan application before the Town of Ballston Planning Board (Planning
Board) with the sole aim of delaying processing to permit the adoption of L.L. No. 3-20 13;
enacting L.L. No. 3-2013 with the sole intent of delaying, hindering and preventing Dolomites
project, despite (a) repetitive bad faith statements by Town Board officials indicating that said law
would not apply to Dolomites proposed project and (b) Defendants awareness that the law was,
pre-adoption, materially defective as evidenced by the public statements of the then Town
Supervisor; halting, dilatorily, in bad faith and maliciously, the processing of Dolomites site plan
application, ostensibly as a result of the enactment of L.L. No. 3-2013, but in advance of that laws
statutory effective date; frivolously and maliciously refusing in bad faith to withdraw L.L. No. 32013, despite Defendants public recognition of its facial and material defects, demanding instead
that the Saratoga Supreme Court judicially nullify said L.L. No. 3-20 13 in order to prevent and
delay Dolomites lawful project; demanding, subsequent to the judicial nullification of L.L. No.
3-2013, dilatorily, in bad faith and maliciously, that Dolomites the-processing site plan
48
application be delayed while c/c minirnus information was demanded from, and supplied by,
Dolomite in order that Dolomites long-pending project would be thrther delayed, hindered and
prevented while the Town prepared to enact L.L. No. 2-2014; and adopting L.L. No. 2-2014. a
virtual reenactment of L.L. No. 3-20 13, suffering from the same substantive, and even greater
notice, defects than its predecessor, for the sole malicious and bad faith purpose of delaying and
preventing Dolomites lawful project and injuring Dolomite.
253.
Defendants thereby denied Dolomite the equal protection of the law, actionable
under the U.S. Supreme Courts class of one jurisprudence even if no suspect class
discrimination, such as religious discrimination, is established therein.
254.
In particular. on numerous occasions, Defendants treated Dolomite in a manner
distinctly different from other businesses seeking to similarly establish locations in the To:m
255.
From the beginning, on August 31, 2011, one of the first public meetings on
Dolomites site plan application, acting Town Board member Szczepaniak urged the Planning
Board to vote against the project (see Ex. 1-I at 55). At the same meeting, Goslin. who was then
running for Town Board and was later elected, also demanded that the Planning Board to vote
against the project (see Ex. H at 42, 45).
256.
Szczepaniak and Goslins thinly veiled directions to the Planning Board are
reflective of Defendants disparate treatment of Dolomites project throughout the two and a half
year period during which Dolomite sought approval of its site plan application.
257.
The sole reason for the zoning change in L.L. No. 3-2013 (reiterated in the equally
defective L.L. No. 2-20 14) was to halt the processing of Dolomites site plan application and
prevent Dolomites project from going fonvard.
258.
This motive is confirmed by statements made by members of the public who
49
referenced the legislation as the proposition for Dolomite (see Ex. X at 25).
259.
This motive is also confirmed by Szczepaniaks and Goslins campaign materials,
which form a part of this Complaint.

260.
Defendants animus towards Dolomites project was further demonstrated in the
barrage of newspaper coverage, prior to and during the pendency of the ill-fated L.L. No. 3-2013,
wherein Goslin wrote that Zoning should never allow an asphalt plant in Ballston Lake and that
the Dolomites asphalt plant project in Curtis Industrial Park highlighted flaws in the towns
zoning laws (see Exs. J and N).
261.
On September 24, 2013, the Town Board enacted L.L. No, 3-2013 in violation of
SEQRA and notice requirements, which law was later invalidated by the Saratoga County Supreme
Court.
262.
Prior to the Courts invalidation of L.L. No. 3-2013, despite having full knowledge
of the defects contained therein, Defendants refused to withdraw L.L. No. 3-2013 because it would
have allowed Dolomites site plan application to proceed before the Planning Board,
263.
Instead, Defendants forced the state court to invalidate the law so that Dolomite,
while it haphazardly attempted to adopt L.L. No. 2-20 14, an identical law intended to reenact L.L.
No, 3-20 13 despite the fact that L.L. No. 3-20 13 was still valid and in effect.
264.
Defendants repeated legislative enactments, aimed solely at prohibiting Dolomite
from gaining approval for its asphalt plant, irrationally and arbitrarily discriminated against
Plaintiff in violation of Plaintiffs right to equal protection of the laws.
265.
Defendants actions have singled out Dolomite for abusively arbitrary and unfair
treatment. with the intent of halting processing of Dolomites site plan application before the
Planning Board in order to prevent Dolomites project and treating Dolomites project differently
50
from every other business located in the Curtis Industrial Park.

266.
Defendants disparate treatment of Dolomite is further evidenced by the Towns
statements that manufacturing and industrial uses from other businesses, such as Global Foundries,
would be welcome in the Towns Industrial District (see Ex. NN at 36).
267.
The actions of Defendants as described above, demonstrate Defendants malicious
and bad faith attempts to single out Dolomites project all in an attempt to prevent Dolomite from
locating its asphalt plant in CIP within the Town.
268.
Defendants, with concerted malicious and bad faith intent, discriminated against
Plaintiff, treating it differently from other businesses in the CIP in order to prevent Plaintiffs
construction of its lawfully permissible asphalt plant.
269.
Defendants conduct has deprived Dolomite of equal protection under the law.
270.
Defendants have intentionally been treated differently from others similarly
situated, to an extent that shocks the conscience, and there is no rational basis for Dolomiles
treatment.
271.
Dolomite has been damaged and is entitled to compensatory damages against
Defendants, for its out-of-pocket expenses and lost profits associated with the asphalt plant, as
well as interest, attorneys fees, excessive consultants fees and costs.
FOURTH CAUSE OF ACTION
U.S. Constitution Fourteenth Amendment
(Conspiracy Against All Defendants)
-
272.
I through 271 as if fully set forth herein.

273.
By way of their conduct as set forth in this Complaint, and acting under color of
51
state law, the Defendants have conspired, and continue to conspire, to deprive Dolomite of the
equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States.
274.
Defendants have sought to use their laws and actions to deprive Dolomite of equal
protection of the law, treating Dolomite differently from others similarly situated in the Town by
issuing, dilatorily, in bad faith and with malicious intent, a positive State Environmental Quality
Review Act (SEQRA) declaration as to Dolomites project in contravention of the determination
of the Town Defendants own consultants; repeatedly extending, dilatorily, in bad faith and with
malicious intent, the processing of Dolomites site plan application before the Town of Ballston
Planning Board (Planning Board) with the sole aim of delaying processing to permit the adoption
of L.L. No. 3-2013; enacting L.L. No. 3-2013 with the sole intent of delaying, hindering and
preventing Dolomites project, despite (a) repetitive bad faith statements by Town Board officials
indicating that said law would not apply to Dolomites proposed project and (b) Defendants
awareness that the law was, pre-adoption, materially defective as evidenced by the public
statements of the then Town Supervisor; halting, dilatorily, in bad faith and maliciously, the
processing of Dolomites site plan application, ostensibly as a result of the enactment of L.L. No.
3-2013, but in advance of that laws statutory effective date; frivolously and maliciously refusing
in bad faith to withdraw L.L. No. 3-2013, despite Defendants public recognition of its facial and
material defects. demanding instead that the Saratoga Supreme Court judicially nullify said L.L.
No. 3-2013 in order to prevent and delay Dolomites lawful project; demanding, subsequent to the
judicial nullification of L.L. No. 3-2013, dilatorily, in bad faith and maliciously, that Dolomites
the-processing site plan application be delayed while c/c minimus information was demanded from,
and supplied by, Dolomite in order that Dolomites long-pending project would be further delayed,
hindered and prevented while the Town prepared to enact L.L. No. 2-20 14; and adopting L.L. No.
52
2-2014, a virtual reenactment of L.L. No. 3-2013, suffering from the same substantive, and even
greater notice, defects than its predecessor, for the sole malicious and bad faith purpose of delaying
and preventing Dolomites lawful project and injuring Dolomite.
275.
Defendants, as officers of the Town. have plainly exerted an improper course of
action against Dolomite using their positions in the community.

276.
Defendants have caused Dolomite to suffer, and to continue to suffer, irreparable
harm, damage and injury. Dolomites harm is continuing.
FIFTH CAUSE OF ACTION

Declaratory Judgment
277.

278.
Under New York law, the actions of Town Defendants, as described above, in
willfully delaying. misleading. and hindering Dolomites asphalt plant project have resulted in
Town Defendants being estopped from claiming that Dolomite does not possess vested rights in
its asphalt plant project.
279.
By reason of the foregoing, this Court should declare that development of
Dolomites premises for its asphalt plant project shall be pursuant to the Zoning Code, Town
Comprehensive Plan and other regulations regarding property development as they existed on the
day that L.L. No, 3-20 13, which has been judicially nullified due to notice defects. was enacted,
WHEREFORE. Plaintiff respectfully requests that this Court grant the following relief:
(1)
Awarding compensative damages against Defendants as this Court deems just for
the loss of Plaintiffs rights to equal protection and due process under the laws, and expenses
53
incurred by Plaintiff and caused by Defendants actions in an amount to be determined at trial, but
in no event less than $4,000,000;
(2)
Awarding Plaintiff the costs, disbursements and attorneys fees incurred in
connection with this action pursuant to 42 U.S.C.

(3)
1988;
Declaring that development of Dolomites premises for its asphalt plant project
shall be pursuant to the Zoning Code, Town Comprehensive Plan and other regulations regarding
property development as they existed on the day that L.L. No. 3-2013, which has been judicially
nullified due to notice defects, was enacted; and
(4)
Awarding Plaintiff such other and further relief as this Court deems just and proper.
JURY DEMAND
Pursuant to Fed. R. Civ. Pro. 38, Plaintiff demands a jury on all issues so triable.
Dated: July 24, 2015

Albany, New York
COUCH WHITE, LLP
Adam Y c ultz. E
(NDNY Bar Roll 10 974)
Jennifer Kavney l-1an v. Esq.
(NDNY Bar Roll 516072)
Auoneys for Plainliff
540 Broadway, P.O. Box 22222
Albany, New York 1220 1-2222
Telephone: (518) 426-4600
E-mail: aschultzWcouchwhite.com
E-mail: jharvev(couchwhite.com
S \DATA\CIiCfltl6 I600I.l63001627216271
Dolomite-USDC.Ton o[Ballslon:PIcadingslgS3 Complaint (07-23-15) do
54

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Case 1:15-cv-00917-GLS-CFH Document 1 Filed 07/27/15 Page 1 of 54

UNITED STATES DISTRICT COURT

DOLOMITE PRODUCTS COMPANY, [NC..

COMPLAINT 1:15-cv-917 (GLS/CFH)

TOWN OF BALLSTON, NEW YORK: TOWN BOARD of

Plaintiff Dolomite Products Company, Inc. (hereinafter Dolomite or Plaintiff), by its

Under well-established New York law, municipal zoning is required to be

conducted in accordance with a comprehensive plan.

Case 1:15-cv-00917-GLS-CFH Document 1 Filed 07/27/15 Page 2 of 54

deliberate consideration of the alternatives and not

the whims of either an articulate minority

Haas. 21 N.Y. 2d 463, 469 (1968).

A primary function of a comprehensive plan is to protect[] the landowner from

It follows that the inclusion of the permitted use in [a zoning] ordinance is

Moreover, [d]iscrimination in zoning is usually thought of in terms of the injustice

which field is described and expressed in the comprehensive plan.

As explained infra, that did not occur here.

Case 1:15-cv-00917-GLS-CFH Document 1 Filed 07/27/15 Page 3 of 54

manufacturing as a permitted use.

Instead, the Town adopted a defective zoning revision intended to preclude

Case 1:15-cv-00917-GLS-CFH Document 1 Filed 07/27/15 Page 4 of 54

even greater notice defects.

Dolomite seeks damages pursuant to 42 U.S.C.

1983 as a result of Defendants

Dolomites civil rights under 42 U.S.C.

1983 by, among other things: (i) discriminating against

Case 1:15-cv-00917-GLS-CFH Document 1 Filed 07/27/15 Page 5 of 54

Case 1:15-cv-00917-GLS-CFH Document 1 Filed 07/27/15 Page 6 of 54

Defendants conduct is and should be declared unlawful, and should be

permanently enjoined and remedied by an appropriate award of monetary damages, and

Jurisdiction of the Court is based on 28 U.S.C.

Constitution, as well as the Civil Rights Act, 42 U.S.C.

Declaratory relief is authorized pursuant to 28 U.S.C.

Venue is proper under 28 U.S.C.

2201 and 2202.

1391(b) in that Defendants reside, and the claims

alleged herein arise, in this Judicial District.

Upon information and beliel the Town is a municipal corporation incorporated

Case 1:15-cv-00917-GLS-CFH Document 1 Filed 07/27/15 Page 7 of 54

times a member of the Town Board and a resident of the Town.

Dolomite is a large materials supplier to the construction industry in upstate New

Blacktop is manufactured by heating and mixing liquid asphalt, which is

Case 1:15-cv-00917-GLS-CFH Document 1 Filed 07/27/15 Page 8 of 54

without cooling below placement specifications.

Blacktop transportation costs and minimum temperature requirements result in a

In 2010-2011, as part of its standard due diligence efforts. Dolomite identified a

that of industrial park

Case 1:15-cv-00917-GLS-CFH Document 1 Filed 07/27/15 Page 9 of 54

On or about June of 2006, the Town of Ballston completed and enacted a

The 2006 Comprehensive Plan continues to remain the official Comprehensive

Plan for the Town.

Case 1:15-cv-00917-GLS-CFH Document 1 Filed 07/27/15 Page 10 of 54

The CIP exists within the Towns Industrial District.

Industrial Zoning Districts anywhere within its corporate borders.

Case 1:15-cv-00917-GLS-CFH Document 1 Filed 07/27/15 Page 11 of 54

Districts (PDDs) in the Town to provide for the rezoning of land to

zones (Ex. D, Art. 9).

Case 1:15-cv-00917-GLS-CFH Document 1 Filed 07/27/15 Page 12 of 54

Strictly limiting the access roadways to such developments (E. D.

Requiring that buildings be provided with potable water (Ex, D,

Providing for on-site sewage disposal facilities (Ex. D, App. B, Sec.

Containing provisions for correction or failure of such on-site septic