Judge Throws Out Legoland Project Opponents Suit

John Jordan | February 2017

GOSHEN—The proposed $500-million LEGOLAND New York resort project has scored a major legal victory with the dismissal of a lawsuit brought by a group of adjacent property owners.

New York State Supreme Court Judge Robert A. Onofry dismissed an Article 78 proceeding filed on Dec. 8 by the Concerned Citizens for the Hudson Valley and a group of property owners that reside nearby the proposed development site against project developer Merlin Entertainment Groups U.S., LLC, the Town of Goshen Planning Board, the Town of Goshen and others.

The project, to be built on approximately 150 acres of a more than 500-acre parcel located off Route 17 in the Town of Goshen, is currently in the municipal approval process that involves environmental review and a zone change to allow the project’s use. On Nov. 17, the Town of Goshen Planning Board accepted the project’s revised Draft Environmental Impact Statement as complete.

Judge Onofry in a 15-page ruling agreed with Merlin and The Town of Goshen and its Planning Board that the issues raised in the legal action “are not ripe for judicial review.”

In his ruling, Judge Onofry noted that the approval process is still ongoing, including the proposed adoption of Local Laws 5 and 6 that would change the town’s zoning law and Comprehensive Plan to allow for the resort/theme park use.

The judge noted the town Planning Board has yet to adopt the proposed Local Laws 5 and 6 or approve the development project. “If the Town Defendants do not adopt the same, or deny permission to build the project, every issue raised in this proceeding will be rendered academic,” he ruled.

Due to alleged defects in the approval process, the Concerned Citizens for the Hudson Valley sought to have the court enjoin the Planning Board from acting as lead agency and compel the New York State Department of Environmental Conservation to assume the role of lead agency; enjoin the Planning Board from holding a meeting on the proposed Local Law 5 and 6 until it has prepared a Generic Environmental Impact Statement; order the Planning Board to rescind its acceptance of Merlin’s revised DEIS and order the completion of a “proper” DEIS and order the town and Planning Board to allow adequate time for public review and commentary on any final DEIS.”

Judge Onofry noted in its ruling that the Town Planning Board held a public hearing on Dec. 15 and adjourned the session to allow for further public comment on the project at a hearing on Dec. 19. In terms of Concerned Citizens’ request to have the state DEC as lead agency, the judge responded that the DEC has not sought thus far to intervene in the current proceeding, which he stated,  “only serves to underscore the issue of whether the DEC is aware of the proceeding or whether it shares the concerns raised by the petitioners.”

In the ruling, Judge Onofry charged that Concerned Citizens is seeking to “inject the court in an ongoing administrative proceeding, to shape the environmental review process in a manner that is more consistent with their vision of how it should be shaped, and to compel the court to apply a standard of review that is significantly more restrictive than the court would otherwise apply in reviewing, and determining the validity of, a final determination, on either or both of the issues presented, i.e., approval of Legoland and/or adoption of the proposed zoning changes and comprehensive plan.”

He added that the court has not found any authority that would allow the court “to take the extraordinary step of injecting itself into the proceedings in order to, in effect, micro-manage the SEQRA review process, including dictating who shall be the lead agency.”

Michael Sussman, an attorney representing the project opponents, held a press conference at his offices in Goshen last Thursday and stated that while he disagreed with the judge’s ruling dismissing the Article 78, “the ball is back with the Town Board and the Planning Board to resolve the very profound problems that have been pointed out by the DEC, the New York State Department of Transportation, our experts and hundreds of citizens who testified and have given written statements as to the deficiencies with regards to the submissions by Merlin Entertainments.”

Sussman said the opponents will now wait for Merlin’s submission of the project’s Final Environmental Impact Statement (FEIS) before taking any further action. He said that opposition to the project is growing. He added that a lawsuit would most likely be filed if the Town of Goshen approves LEGOLAND New York’s site plan and zone change. “I think it is certain there will be a lawsuit on the substance and on the merits. I don’t think that is duckable,” Sussman said, adding that there are significant traffic and water quality issues that must be addressed.

Merlin Entertainments, the developer and operator of the proposed park, hopes to secure approvals and open the theme park in early 2019. Merlin has previously stated it hoped to secure approvals for the project in the first quarter of 2017. Merlin is seeking a zone change from the Town of Goshen on 153 acres of 523 acres it controls on a parcel that abuts Route 17 between exits 124 and 125.

The developer will initially invest $350 million in the development and a total of more than $500 million over the first five years of the theme park and resort’s operation. In December, LEGOLAND New York was awarded $3 million in funding commitments from New York State’s Consolidated Funding Application program. Previously the project secured $3.1 million in committed CFA funding in 2014 and another $1 million in 2015. It should be noted that the $7.1 million in CFA funding commitments for the project thus far have yet to be funded and forwarded to Merlin since the project has not secured approvals as yet from the Town of Goshen.

The proposal for the LEGOLAND New York resort includes a theme park with more than 50 rides, shows and attractions and a 250-room LEGOLAND Hotel. The theme park will be geared toward families with children aged two to 12.

 

John Jordan
Editor, Real Estate In-Depth