Mushroom Plant Wins In Court

By Jeanne Sager
WURTSBORO — January 1, 2008 — Round three has gone to the folks intent on seeing mushrooms processed in Mamakating, but the fight’s not over yet.
A decision made last week in the New York State Supreme Court’s Appellate Division Third Department dismissed a request by the Basha Kill Area Association (BKAA) to review the town’s planning board approval of a site plan for the Yukiguni Maitake mushroom plant on Route 209.
Along with Jodi Rubenstein, a neighbor of the 48-acre parcel where the Japanese company plans to build a 200,000 square foot factory, the BKAA has been fighting the project since it first came on the horizon in 2003.
When it received conditional site plan approval and a special use permit from the Town of Mamakating Planning Board in August 2006, the BKAA and Rubenstein filed suit in Supreme Court in Sullivan County.
Denied twice by the court in Sullivan, they moved on to the Appellate Division’s Third Department, only to have their appeal struck down this week.
Up next, according to BKAA Attorney Alex Smith of Middletown, is a request to the highest court in New York State, the Court of Appeals, to hear the appeal of the Appellate Division’s decision.
“We’re going to move for leave to appeal,” Smith noted. “They don’t just take any appeal.”
Smith said the BKAA is still fighting the legality of the planning board’s approval, based on its decision to forgo review of a number of environmental impact studies that the non-profit group believes would reveal a detrimental affect on the area.
There’s no wastewater treatment plan, no stormwater plan, Smith said.
“All of the things you’d normally review before giving approval to a gas station or a restaurant haven’t been done,” Smith contended.
The Supreme Court in Sullivan, however, decided that the BKAA lacked standing to bring its motion, reviewing only the claims made by Rubenstein.
When the BKAA appealed to the Appellate Division, it did not challenge the lower court’s conclusion that its claims lacked standing.
“Accordingly, we dismiss the appeal as to BKAA,” the report issued by the court last week noted.
The remainder of the report focused on Rubenstein’s varied reasons for requesting the court nullify the town’s conditional approval for Yukiguni.
Rubenstein contended the town failed to take a hard look at a number of environmental concerns when it reviewed the State Environmental Quality Review Act (SEQRA) forms submitted by Yukiguni.
In response, the presiding justices determined, “we are satisfied that the board, as lead agency, took the requisite ‘hard look at the potential environmental impacts and [made] a reasoned elaboration of the basis of its findings.’
“The board arrived at its decision with the assistance of its professional planner and independent consultants in hydrology, engineering and geology, and after feedback from the public, including petitioners,” the report concluded. “The extensive SEQRA findings statement defines 15 areas of environmental concern, each considered in depth and containing mitigation factors.
“Based on the foregoing, the board satisfied its obligations pursuant to SEQRA and took a hard look at the areas of environmental concern, including water conservation and odor, noise and visual impact mitigation, and made a reasoned elaboration of the basis for its determination.”
Yukiguni attorney Charles Bazydlo called the decision “significant” specifically in its approval of the planning board’s methods.
“We’re hoping this is the last of the litigation,” he said.
Although there are several other state permits that will have to be obtained, Bazydlo said he expects this is the last major hurdle before construction can begin.
That will be up to the Court of Appeals.
“This is an issue of statewide importance,” Smith said. “It radically alters the responsibilities of a planning board.
“The state’s highest court ought to weigh in on it.”
If the motion to appeal is shot down, the matter will be dead, Smith said.
But if it’s approved, there may be several months – if not a year – before Yukiguni’s planners will know if they can move into Mamakating.