SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER
-------------------------------------------------------------------------X
In the Matter of the Application of Index No.:
FRANK DELEONARDIS, ROBERT DADARRIA, Assigned Justice:
and SHERIECE MCKEAZIE,
NOTICE OF
PETITION
Petitioners,

For a Judgment Pursuant to CPLR Article 78

-against-

THE PLANNING BOARD OF THE CITY OF MOUNT

VERNON, THE CITY COUNCIL OF THE CITY OF MOUNT
VERNON, THE CITY OF MOUNT VERNON, and
ATLANTIC DEVELOPMENT GROUP, LLC,

Respondents.
--------------------------------------------------------------------------X

PLEASE TAKE NOTICE that upon the annexed Verified Petition dated August 11,

2010 and any exhibits annexed thereto, an application will be made to this Court at an IAS Part

thereof at the Westchester County Courthouse, 111 Dr. Martin Luther King Jr. Boulevard on the

28th day of September, 2010 at 9:30 a.m., or as soon thereafter as counsel may be heard, for relief

pursuant to Article 78 of the Civil Practice Law and Rules (“CPLR”) for an order and judgment:

1. Annulling, vacating and setting aside the site plan approval resolution (the “Site

Plan Resolution”) adopted by Respondent Planning Board of the City of Mount Vernon (the

“Planning Board”) concerning property located on Oakley Avenue, Gramatan Avenue and Crary

Avenue in the City of Mount Vernon on the ground that they are arbitrary, capricious and

contrary to law;

2. annulling, vacating and setting aside the ordinance adopted by Respondent City

Council of the City of Mount Vernon (the “City Council”), which approved the text change to

08-11-10 Notice of Petition Page 1

the existing PUD-2 provisions in Section 267-22 of the Mount Vernon Zoning Code and any

mapping in connection therewith on the ground that it is arbitrary, capricious and contrary to

law;

3. annulling, vacating and setting aside the City Council’s SEQRA Findings

Statement in connection with the Property on the ground that it is arbitrary, capricious, contrary

to law and was not the subject of a “hard look” as required by SEQRA;

4. enjoining Respondent City of Mount Vernon from issuing any building permits in

furtherance of the Site Plan Resolution;

5. enjoining Respondent Atlantic Development Group from taking any action in

furtherance of the Site Plan Resolution; and

6. for such other and further relief as this Court may deem just and proper, including

but not limited to, reasonable attorneys’ fees and costs related to this proceeding.

PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §§ 7804 (c) and (e),

answering papers, if any, as well as the certified return in connection with the proceedings before

the City Council and the Planning Board which form the subject matter of the above-captioned

proceeding must be served on Petitioners’ attorneys at the address designated below at least five

days prior to the return date.

Dated: White Plains, New York

August 11, 2010
Law Office of Albert J. Pirro, Jr.
Attorneys for Petitioners

By:________________________
Albert J. Pirro, Jr., Esq.
1 North Lexington Ave, Suite 15
White Plains, New York 10601
(914) 287-6444

08-11-10 Notice of Petition Page 2

TO: City Clerk
City of Mount Vernon
City Hall
Roosevelt Square
Mount Vernon, New York 10550

Planning Board
City of Mount Vernon
City Hall
Roosevelt Square
Mount Vernon, New York 10550

City Council
City of Mount Vernon
City Hall
Roosevelt Square
Mount Vernon, New York 10550

Corporation Counsel
City of Mount Vernon
City Hall
Roosevelt Square
Mount Vernon, New York 10550

Atlantic Development Group, LLC

155 Avenue of the Americas, 3rd Fl
New York, New York 10013

08-11-10 Notice of Petition Page 3

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
-------------------------------------------------------------------------X
In the Matter of the Application of Index No.:
FRANK DELEONARDIS, ROBERT DADARRIA, Assigned Justice:
and SHERIECE MCKEAZIE,
VERIFIED
PETITION
Petitioners,
For a Judgment Pursuant to CPLR Article 78

-against-

THE PLANNING BOARD OF THE CITY OF MOUNT

VERNON, THE CITY COUNCIL OF THE CITY OF MOUNT
VERNON, THE CITY OF MOUNT VERNON, and
ATLANTIC DEVELOPMENT GROUP, LLC,

Respondents.
--------------------------------------------------------------------------X

Petitioners Frank DeLeonardis, Robert Dadarria, and Sheriece McKeazie (the Individual

Petitioners are collectively referred to herein as the “Petitioners”), by their attorney, Albert J.

Pirro, Jr., as and for their Verified Petition, allege as follows:

1. This proceeding has been commenced pursuant to Article 78 of the New York

State Civil Practice Law and Rules (“CPLR”) to:

(a) Annul, vacate and set aside the following interrelated approval ordinances
adopted by Respondent City Council of the City of Mount Vernon (the “City
Council”) concerning property located at the intersection of Gramatan Avenue
and Oakley Avenue (Map Page 165.54, Block 1122, Lots 1, 19 and 20) on
Oakley Avenue (Map Page 165.54, Block 1135, Lot 10) and on Crary Avenue
(Map Page 165.54, Block 1135, Lot 1) (collectively the “Property”) approving
zoning text amendments to the PUD-2 Zone to allow residential and non-
residential mixed use development within one-half mile of the Mount Vernon
East Train Station subject to certain restrictions;

(b) Annul, vacate and set aside the ordinances adopted by Respondent City
Council which established the PUD-2 District (as amended) for the Property;

(c) Annul vacate and set aside the Resolution of the City Council adopting the
SEQRA Environmental Findings for the proposed development;

08-11-10 Verified Petition Page 1

 (d) Annul, vacate and set aside the Resolution of the Planning Board of the City
of Mount Vernon (the “Planning Board”) approving the site plan for the
Project and any environmental findings in connection therewith;

(e) Enjoin Respondent City of Mount Vernon (“Mount Vernon” or the “City”)
from issuing any building permits in furtherance of the challenged Ordinances
and Resolutions; and

(f) Enjoin Respondent Atlantic Development Group, LLC (the “Applicant” or

“Atlantic”) from taking any action in furtherance of the challenged
Ordinances and Resolutions.

2. Under the State Environmental Quality Review Act (“SEQRA”), the City Council

as lead agency had the obligation to take a “hard look” at all potential adverse environmental

impacts.

3. The City Council was arbitrary and capricious when it adopted the Findings

Statement and the Zoning Text Amendments without taking a hard look at all potential adverse

environmental impacts, without consideration of all fiscal and economic impacts and without any

consideration of the significant adverse impact on community and neighborhood character.

4. The Planning Board was arbitrary and capricious when it approved the site plan

based on the flawed findings statement without conducting any independent environmental

review or making any independent environmental findings of its own.

5. The City Council and the Planning Board failed to evaluate environmentally

significant issues prior to their adoption of the challenged Resolutions and Ordinances.

THE PARTIES

6. Petitioner Frank DeLeonardis is a resident of the City of Mount Vernon and owns

real property located at 177 Gramatan Avenue, Mount Vernon, New York in close proximity to

the site of the proposed project. Mr. DeLeonardis is an aggrieved party that is directly affected

by the actions of the City Council and Planning Board.

08-11-10 Verified Petition Page 2

 7. Petitioner Robert Dadarria is a resident of the City of Mount Vernon and resides

at 167 Crary Avenue, Mount Vernon, New York in immediate proximity to the Property. Mr.

Dadarria is an aggrieved party that is directly affected by the actions of the City Council and

Planning Board.

8. Petitioner Sheriece McKeazie is a resident of the City of Mount Vernon and owns

property at 173 Crary Avenue, Mount Vernon, New York in immediate proximity of the

Property. Ms. McKeazie is an aggrieved party that is directly affected by the actions of the City

Council and Planning Board.

9. Petitioners suffered actual and concrete harm and became aggrieved when the

challenged Ordinances and Resolutions were adopted, which committed Mount Vernon to a

direct course of future action.

10. Respondent City of Mount Vernon is a municipal corporation duly organized and

existing under the laws of the State of New York and situated in the County of Westchester.

11. Respondent City Council of the City of Mount Vernon is the elected legislative

body of Mount Vernon and is located in and maintains offices at City Hall, Roosevelt Square,

Mount Vernon, New York 10550.

12. Respondents Planning Board is the appointed body in Mount Vernon vested with

the authority to grant various land use, environmental and zoning approvals. The Planning

Board is located in and maintains offices at City Hall, Roosevelt Square, Mount Vernon, New

York 10550.

13. Respondent Atlantic Development Group, LLC is the Project applicant and, upon

information and belief, the owner of the Property and is duly organized under the laws of the

08-11-10 Verified Petition Page 3

State of New York with offices at 155 Avenue of the Americas, 3rd Floor, New York, New York

10013.

JURISDICTION

14. The Court has subject matter jurisdiction and may exercise personal jurisdiction

over Respondents in this matter.

15. Pursuant to CPLR Section 506(b), venue is proper in this Court because the

determinations complained of were made, and the material events took place, in the County of

Westchester, which is situated within the Ninth Judicial District.

BACKGROUND

Description of the Property

16. The Property includes the site of the mixed-use Project located at Gramatan

Avenue and Oakley Avenue in the City, which property is designated on the City’s tax rolls as (i)

Map Page 165.54, Block Number 1122, Lot Numbers 1, 19 and 20 (the “Gramatan Site”), (ii)

Map Pages 165.54, Block 1135, Lot Number 10 (the “Oakley Site”) and (iii) Map Page 165.54,

Block Number 1135, Lot 1 (the “Crary Site”).

17. The Project also includes the acquisition and/or improvement of certain property

owned by the City of Mount Vernon, as follows: (i) Atlantic’s acquisition of a fee interest in

certain real property in which the City is the record owner, consisting of property currently used

as a surface municipal parking lot, designated on the City’s tax rolls as Map Page 165.54, Block

Number 1122, Lot Number 1 (the “Surface Parking Lot”); and (ii) improvements by Atlantic to

the City’s Municipal Garage (“Municipal Parking Garage”) designated on the City’s tax rolls as

Map Page 165.62, Block Number 1117, Lot Numbers 1 and 14 located at 61 Gramatan Avenue

and 30 North Third Avenue.

08-11-10 Verified Petition Page 4

 18. The Project, as proposed, required text amendments to the City’s PUD-2 Zoning

to amend the PUD-2 provisions to allow for residential and non-residential mixed-use

developments, within one-half mile of the Mount Vernon East Metro-North Train Station, and

subject to certain enumerated restrictions and requirements in: (i) a combination of all three of

the NB, CB and RMF-15; or (ii) the NB and RMF-15 Districts.

19. The Proposed Action included an ordinance to establish the PUD-2 District in the

Project Area.

20. The following chart identifies the various components that, together, constitute

the project area:

Phase Address Block and Lot

Phase I 6 Oakley Avenue Map Page 165.54, Block Number
1122, Lot Numbers 1, 19 and 20
203 Gramatan Avenue
211 Gramatan Avenue
Phase II 144 Crary Avenue Map Page 165.54, Block Number
1135, Lot 1
40 Oakley Avenue
Phase III 30 Oakley Avenue Map Page 165.54, Block Number
1135, Lot Number 10
Municipal Parking Garage 61 Gramatan Avenue and 30 Map Page 165.62, Block Number
North 3rd Avenue 1117, Lot Numbers 1 and 14
Parking Lot 1 Oakley Avenue Map Page 165.54, Block Number
1122, Lot Number 1

21. The project, as approved by the challenged Ordinances and Resolutions includes a

mixed –use development for the property located within the Project Area. The Project consists

of three phases. Phase I consists of a mixed-use building, including, approximately 159

affordable/work force rental units, approximately 20,745 square feet of commercial retail space,

15,107 square feet of amenity space (including outdoor space), and 644 square feet of

community space for the City’s use and a second story municipal garage of 57 spaces.

08-11-10 Verified Petition Page 5

 22. Phase I would consist of two wings: (i) a 13 story tower, plus a rooftop amenity

space, along Gramatan Avenue, and (ii) a 7 story wing, which would wrap around North Third

Avenue.

23. Phase II would consist of a 9-story building, plus a rooftop amenity space,

including approximately 59 affordable senior housing units, 1 unit for a resident manager, 2,915

square feet of amenity space, and surface parking for 15 cars.

24. Phase III consists of a 9-story residential building, plus rooftop amenity space,

including approximately 26,432 square feet of amenity space (including outdoor space) and 84

on-site surface parking spaces.

25. The project also includes renovation of the City’s Municipal Garage at the

location described above.

26. The project required certain text changes to the Mount Vernon Zoning Code

pertaining to the PUD-2 District, which is codified in Section 267-22 of the City Zoning Code

(the “Zoning Amendments”). The Zoning Amendments to Section 267-22 would: (i) allow the

minimum acreage for the establishment of the PUD-2 District to be met by counting street area

between the lot lines; (ii) allow the PUD-2 District to be established for mixed use projects

where the underlying Zoning Districts include either (a) a combination of the NB, C-B and

RMF-15 Districts; or (b) the NB and RMF-15 Districts; (iii) limit the establishment of the PUD-

2 District for mixed use projects to areas within a half mile of the Mount Vernon East Metro-

North Train Station.

27. The Amendments also include requirements for the establishment of the PUD-2

District for mixed –use projects, consisting of a maximum building height, maximum coverage,

08-11-10 Verified Petition Page 6

lot area per dwelling unit, setbacks, minimum distance between buildings, and limitations on

permissible principal and accessory uses.

28. The Zoning Amendments also establish off-street parking space requirements for

mixed use projects in a PUD-2 District, and permitted uses in a mixed use project in a PUD-2

District.

29. The Amendments also provide that a property owners association may own

common lands and facilities in units, the entity that owns the buildings would own and maintain

common lands and facilities.

30. The Proposed Action also included the establishment of the PUD-2 District on the

Project Area.

31. Finally, the Proposed Action includes a Land Acquisition and Development

Agreement (“LADA”) between the City and the Applicant, which will, among other things, set

forth: (i) the terms for the conveyance of the Surface Parking Lot to the Applicant, and (ii) the

Applicant’s obligations concerning the Project, including substantive conditions attaching to the

issuance of certain permits and approvals.

ENVIRONMENTAL REVIEW OF THE PROJECT

32. Upon information and belief, the City Council, as the lead agency under SEQRA,

issued a Positive Declaration finding that there was the possibility of a least one significant

adverse environmental impact as a result of the proposed development on the Property.

33. Upon information and belief, the City Council never adopted a scoping document

(the “Scope”) to serve as the outline for the Project’s draft environmental impact statement (the

“DEIS”).

08-11-10 Verified Petition Page 7

 34. Upon information and belief, on November 24, 2009, the City Council accepted

the DEIS as complete for public review.

35. Upon information and belief, the City Council held a public hearing on the DEIS

on December 16, 2009 during which the public and any interested and involved parties could

comment on the Original Project and the alternatives proposed as part of the DEIS.

36. Upon information and belief, on or about June 11, 2010, the Project’s final

environmental impact statement (the “FEIS”) was accepted by the City Council as complete.

37. Upon information and belief, on or about June 29, 2010, the City Council adopted

a Findings Statement and made the following findings:

(1) Consistent with social, economic and other essential considerations from among
the reasonable alternatives, the Proposed Actions are ones that avoids or minimizes adverse
environmental impacts to the maximum extent practicable, and that adverse environmental
impacts will be avoided or minimized to the maximum extent practicable by incorporating those
mitigation measures that are set forth herein, which have been identified as practicable.

(2) The Proposed Actions are ones that appropriately balance potential adverse
impacts against potential beneficial impacts in the forms of creation of additional housing and
commercial opportunities, generation of tax and other revenues, the overall redevelopment of
vacant buildings and underutilized sites that currently exerts a blighting influence on the
community with a mixed-use development consistent with a strategic gateway to the City’s
downtown.

(3) The written Findings Statement contains the facts and conclusions utilized by the
City Council to make its decision.

THE APPROVED PROJECT

38. The project, as approved, will consist of the following:

(a) Phase I

Consists of a thirteen-story mixed use building with 159 affordable/work force rental
units, approximately 20,745 SF of commercial retail space, approximately 15,107 SF of amenity
space, and approximately 644 SF of community services space which will be leased to the City
and utilized by either auxiliary police or as public access studio, 116 parking spaces located on
two levels (57 public parking spaces dedicated to municipal use and 59 private spaces), and an
additional 118 parking spaces located in the City Municipal Garage.

08-11-10 Verified Petition Page 8

 The Phase I building will have one curb cut along North Third Avenue which will be
used to access the two floors of public and private parking on site. This curb cut measures 24’-
6”. In addition, a drop off area that measures 70’-9” will be provided along North Third Avenue.

The commercial retail space in the Phase I building will be accessed through four places
along Gramatan Avenue and two locations along Oakley Avenue. A separate access along North
Third Avenue is provided for the residents of the Phase I Building and a separate entrance along
North Third Avenue is provided for access to the auxiliary space.

As part of the Phase I development, the Applicant has agreed to renovation of the
Municipal Parking Garage located at Sidney Avenue. This revitalization will be conducted in
conjunction with the Phase I building, but will be utilized for residential parking requirements of
all three buildings.

(b) Phase II

Consists of a nine-story building with approximately 55,364 gross SF, 59 affordable

senior housing units (12 studios and 47 one-bedrooms), 2915 SF of amenity space and 15
parking spaces located in the Municipal Parking Garage.

No curb cuts, loading areas, or drop off areas will be provided as part of the Phase II
building. Residents will access the site building along Oakley Avenue.

(c) Phase III

Consists of a nine-story residential building with 131 market rate residential units, 26,432
SF of amenity space and, 84 private parking spaces located on site, and an additional 84 private
parking spaces located in the Municipal Parking Garage.

The Phase III building has two curb cuts along C. Altschuler Place which are used to
access the one floor of parking on site. In addition, one curb cut is located along North Third
Avenue.

39. On July 7, 2010, the Planning Board approved the site plan for the project which

included numerous revisions from the prior site plan under review by the Planning Board.

AS AND FOR A FIRST CAUSE OF ACTION

40. Petitioners respectfully repeat and reallege the allegations set forth in Paragraphs

1 through 39 as if fully stated herein.

08-11-10 Verified Petition Page 9

 41. Pursuant to SEQRA, the City Council was required to take a “hard look” at each

and every potential adverse environmental impact and to mitigate all such adverse impacts to the

greatest extent practicable.

42. The City Council failed to take a “hard look” and simply approved the project as

presented by the Applicant without regard to multiple adverse environmental and economic

consequences.

AS AND FOR A SECOND CAUSE OF ACTION

43. Petitioners respectfully repeat and reallege the allegations set forth in Paragraphs

1 through 42 as if fully stated herein.

44. SEQRA requires a governmental agency (e.g. the lead agency and involved

agencies) to make explicit environmental findings when it renders a decision on a matter for

which an EIS is required.

45. An involved agency has an independent duty to review the impacts associated

with its approval and evaluate same and is not bound by the lead agency’s actions.

46. As an involved agency, the Planning Board was obligated to adopt a findings

statement after the City Council adopted its Findings Statement.

47. On July 7, 2010, the Planning Board adopted the Site Plan Approval Resolution

which simply incorporated the conclusions in the City Council’s Findings Statement.

48. The Planning Board was arbitrary and capricious in relying upon the erroneous

Findings Statement adopted by the City Council because that Findings Statement did not

adequately evaluate the environmental impacts of the project.

AS AND FOR A THIRD CAUSE OF ACTION

49. Petitioners respectfully repeat and reallege the allegations set forth in Paragraphs

“1” through “48” as if fully set forth herein.

08-11-10 Verified Petition Page 10

 50. The Planning Board members did not review, or have a reasonable opportunity to

review, the most recent revisions to the proposed site plan before voting to approve that site plan

with the most recent revisions to that site plan.

51. When questioned following the vote, only one member of the Planning Board

acknowledged having reviewed the site plan as then proposed on July 7, 2010 prior to voting on

that site plan on July 7, 2010.

52. Upon information and belief, due to the last minute submission of the site plan,

the Planning Board did not and could not properly review and evaluate the final site plan prior to

voting to approve that site plan on July 7, 2010.

53. Based on the foregoing, The Planning Board’s approval of the site plan on July 7,

2010 was arbitrary, capricious, contrary to law, without any rational basis and not based upon the

record before the Planning Board.

54. Therefore, the Site Plan Resolution must be annulled, vacated and set aside.

AS AND FOR A FOURTH CAUSE OF ACTION

55. Petitioners respectfully repeat and reallege the allegations set forth in Paragraphs

“1” through “54” as if more fully set forth herein.

56. One of the most significant issues presented to the City Council as part of the

SEQRA review of this project is the potential impact on the public schools should the proposed

project be constructed and occupied.

57. According to the calculations conducted by the City Council, its consultants and

the consultants for the Applicant, the projected student generation from the proposed project is

sixty-two (62) school children and, significantly, thirty-five (35) of those children would attend

elementary school.

08-11-10 Verified Petition Page 11

 58. Upon information and belief, the designated elementary school for the children

who reside in the project area is Lincoln Elementary School.

59. However, upon information and belief, Lincoln Elementary School is currently

approximately one hundred forty-five (145%) percent of capacity and cannot possibly

accommodate an additional thirty-five (35) students without severely adversely impacting the

school’s ability to properly educate its student population.

60. The City Council, while aware of the potential severe impact on Lincoln

Elementary School, failed to either avoid or mitigate the significant over capacity the

construction and occupation of the proposed project would generate.

61. Instead, the City Council’s only response to this severe and adverse impact was to

require that, as a condition to the issuance of a Certificate of Occupancy, the Applicant use its

“best efforts” to work with the Board of Education to change the attendance zone for the project

area so that children living in the proposed project will attend either Pennington School,

Columbus School, or Traphagen School.

62. However, upon information and belief, while these alternate schools are not as

overcrowded as Lincoln Elementary School, they are also over capacity.

63. In addition, no study was undertaken as to the potential impacts to these proposed

alternate schools, which are a significant distance from the project area, which is less than a half

mile from Lincoln Elementary School.

64. No review was done to determine how the shift of attendance zones would impact

bus routes or the increase in number of children requiring busing or the overall impacts such a

disruption of established attendance zones would cause.

08-11-10 Verified Petition Page 12

 65. Further and more significantly, there is no provision in the findings or any of the

approvals in the event the Applicant’s “best efforts” to work with the Board of Education do not

result in a resolution of this issue.

66. The City Council has effectively abdicated its responsibility and obligation as

lead agency to study and mitigate this significant, adverse and far reaching impact that could

potentially cause seriously detrimental consequences to one or more elementary schools and the

education of hundreds of young school children who attend those schools.

67. Rather than address this significant problem, the City Council has shifted that

responsibility to the Applicant and to the Mount Vernon Board of Education to determine how to

avoid severe impacts to the children who attend these schools from both existing residences and

those who will reside in the proposed project.

68. The City Council, as lead agency, has for all intents and purposes washed its

hands with respect to this significant adverse impact and told the Applicant and the Board of

Education to resolve a situation the City Council refused to address.

69. The City Council not only refused to take responsibility for this severe impact, the

findings, as adopted, allow the project to move forward without any mitigation to address the

overcrowding issue at these elementary schools should the Applicant and the Board of Education

be unable to resolve the issue.

70. Even if a resolution is eventually reached, the findings are fatally flawed because

the lead agency did not address this severe impact, and the City Council has not and will not be

able to study whatever solution is reached, if any solution is ever found.

71. There is now no way to determine what secondary or unanticipated impacts will

result from any resolution of this issue if some solution is worked out and, more concerning,

08-11-10 Verified Petition Page 13

what impacts there will be if no solution is ever agreed upon. The City Council has clearly failed

to take a ‘hard look” at this extremely significant adverse impact.

72. Once the Applicant demonstrates “best efforts” the project will go forward and

only time will tell what significant impacts will result in the absence of mitigation or what

impacts will result from some unknown agreement between the Board of Education and the

Applicant.

73. Based on the foregoing and the City Council’s complete failure to meet its

responsibility as lead agency, the Findings Statement adopted on June 29, 2010 is arbitrary,

capricious, contrary to law and without a rational basis and must be annulled, vacated and set

aside.

AS AND FOR A FIFTH CAUSE OF ACTION

74. Petitioners respectfully repeat and reallege the allegations set forth in Paragraphs

“1” through “73” as if fully stated herein.

75. The City Council limited its environmental review in connection with the zoning

text amendments to the PUD-2 “floating” zone to the project area for the proposed project being

challenged.

76. Upon information and belief, the newly amended PUD-2 “floating” zone is

applicable to areas significantly beyond the project area studied in connection with those

amendments.

77. Based on the foregoing, the amendments to the PUD-2 “floating” zone and the

environmental findings adopted in connection therewith are arbitrary, capricious, without any

rational basis, not supported by the record before the City Council, contrary to law and constitute

08-11-10 Verified Petition Page 14

a violation of SEQRA and the regulations promulgated thereunder and must be annulled, vacated

and set aside.

AS AND FOR A SIXTH CAUSE OF ACTION

78. Petitioners respectfully repeat and reallege the allegations set forth in Paragraphs

“1” through “77” as if more fully stated herein.

79. During the environmental review of the proposed project the City Council

reviewed and relied upon certain documents, studies, reports and reviews in order to reach the

findings made in connection with the approvals granted in connection with the proposed project.

80. Upon information and belief, some of those documents, studies, reports and

reviews that the City Council relied upon were and are not included in the public record

maintained in connection with the review and approval of the proposed project.

81. The failure to include all relevant documents relied upon by the City Council in

the review and approval of the proposed project in the records available for public review

constitutes a violation of SEQRA and the regulations promulgated thereunder.

82. SEQRA and the applicable case law requires literal and exact compliance with the

procedural rules and regulations for the conduct of any environmental review.

83. SEQRA also requires substantive compliance with respect to the open and

interactive process in connection with public participation and review of the environmental and

other impacts arising from any proposed project.

84. Based upon the failure to include all relevant documents, studies, reports and

reviews in the public record, the findings and approvals were adopted in violation of law and

lawful procedure and must be annulled, vacated and set aside.

08-11-10 Verified Petition Page 15

 AS AND FOR A SEVENTH CAUSE OF ACTION

85. Petitioners respectfully repeat and reallege the allegations set forth in Paragraphs

“1” through “84” as if more fully set forth herein.

86. In connection with the review and approval of the proposed project, the Applicant

and the City on June 11, 2009 entered into a Memorandum of Understanding (“MOU”)

governing the process and procedures to be followed in connection with the environmental

review and development of the proposed project.

87. The MOU, among other things, set certain deadlines in connection with the

environmental review of the project which unreasonably restricted and limited the City Council’s

review of the project and the public’s ability to participate in and review the SEQRA process

undertaken by the City Council.

88. The MOU was made in violation of applicable law and constitutes a violation of

SEQRA and the regulations promulgated thereunder and illegally committed the City to a course

of action without required environmental review.

89. The MOU also contains numerous terms and conditions not included or studied as

part of the environmental review of the project in violation of law and lawful procedure.

90. Based on the foregoing, the findings and approvals adopted in connection with the

proposed project must be annulled, vacated and set aside.

WHEREFORE, Petitioners respectfully request that the Court enter a judgment:

(A) Annulling, vacating and setting aside the Site Plan Resolution;

(B) Annulling, vacating and setting aside the City Council’s Finding Statement;

(C) Annulling, vacating and setting aside the City Council’s Amendments to the Zoning

Ordinances;

08-11-10 Verified Petition Page 16

 (D) Enjoining Mount Vernon from issuing any building permits in furtherance of the

Ordinances and Resolutions;

(E) Enjoining the Applicant from taking any action in furtherance of the Ordinances and

Resolutions; and

(F) Granting such other and further relief as this Court may deem just and proper,

including but not limited to, reasonable attorney’s fees and costs related to this

proceeding.

Dated: White Plains, New York

August 11, 2010

Law Office of Albert J. Pirro, Jr.

Attorneys for Petitioners

By:________________________
Albert J. Pirro, Jr., Esq.
1 North Lexington Ave, Suite 15
White Plains, New York 10601
(914) 287-6444

08-11-10 Verified Petition Page 17