SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
---------------------------------------------------------------------------------x
INGRID BEER,
Petitioner,
-against-

Index # ___________

TOWN OF NEW PALTZ; NEIL BETTEZ, AS SUPERVISOR,

JEFFREY LOGAN, AS DEPUTY SUPERVISOR AND
COUNCIL MEMBER; AND DANIEL TORRES, MARTY
IRWIN AND JULIE SEYFERT-LILLIS, TOWN COUNCIL
MEMBERS, EACH IN HIS OR HER OFFICIAL CAPACITY
WITH THE TOWN OF NEW PALTZ,
Respondents,
for a Judgment and Order pursuant to Article 78
of the Civil Practice Law and Rules.
----------------------------------------------------------------------------------x
NOTICE OF PETITION
PLEASE TAKE NOTICE that, upon the annexed Verified Petition and Exhibits and any
additional materials properly submitted by the parties herein, petitioner will move this Court at
the Ulster County Courthouse, 285 Wall Street, Kingston, New York on April 26, 2016 at 9:30
a.m., or as soon thereafter as counsel can be heard, for an order and judgment vacating and
annulling the determination and order of the Town Board of the Town of New Paltz providing for
the establishment of a Water District #5, awarding petitioner the costs and disbursements arising
from the preparation, initiation and prosecution of this special proceeding, and granting to

the petitioner such other and/or further relief as this Court may deem just, proper and equitable.
Pursuant to 403 (b) of the CPLR, the respondents answer, if any, shall be served at least
seven days before such return date.

Dated: Albany, New York

March 28, 2016
Yours, etc.

________________________________
Marty I. Rosenbaum
Marty I. Rosenbaum
Attorney for Petitioner
1971 Western Avenue, #105
Albany, New York 12203
(518) 542-1961

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
---------------------------------------------------------------------------------x
INGRID BEER,
Petitioner,
-against-

Index # ___________

TOWN OF NEW PALTZ; NEIL BETTEZ,AS SUPERVISOR,

JEFFREY LOGAN, AS DEPUTY SUPERVISOR AND
COUNCIL MEMBER; AND DANIEL TORRES, MARTY
IRWIN AND JULIE SEYFERT-LILLIS, TOWN COUNCIL
MEMBERS, EACH IN HIS OR HER OFFICIAL CAPACITY
WITH THE TOWN OF NEW PALTZ,
Respondents,
for a Judgment and Order pursuant to Article 78
of the Civil Practice Law and Rules.
----------------------------------------------------------------------------------x
VERIFIED PETITION
Introduction
1. This is a petition for certiorari relief pursuant to Article 78 of the Civil Practice Law
and Rules.
2. The proceeding stems from the approval of the New Paltz Town Board, purportedly
pursuant to Article 12 of the New York Town Law, of the establishment of Water District #5 in
a portion of the Town of New Paltz, New York.
3. As described more fully in the petition below, respondents approved the creation of
this water district without lawful authority and notwithstanding that the criteria for the
establishment of such a water district under Article 12 of the Town Law had not been met.
Specifically, respondents accepted and granted a petition to establish this water district
improperly, in that, inter alia:
(a) the petition did not comply with Town Law 191 because it was not signed by the
owners of property in the proposed district whose properties exceed in value 50% of the assessed
3

value of all properties in the proposed water district, and several of those who did sign did not
have the requisite authority to sign the petition;
(b) the petition, accompanying exhibits and public notice did not properly describe the
boundaries of the district, as they did not describe the property in the manner required for the
recording of a deed;
(c) such descriptions and the map of the territory of the proposed district were inadequate
because they did not show all water outlets, including but not limited to water hydrants;
(d) the petition and Town Board resolution approving the proposed district contain
material statements of purported fact which are not based on any proof submitted to or otherwise
presented by the Town Board, and some such material statement of purported fact are
demonstrably incorrect;
(e) the Town respondents improperly used Town resources in support of the petition effort
without formal approval by resolution, thereby unlawfully denying residents the opportunity
under law to seek a permissive referendum barring such support;
(f) significant misrepresentations were made to residents and material facts were not
disclosed, which rendered the petition fraudulent and permeated with fraud;
(g) not all homes and properties that would benefit from the proposed water district are
included in the water district;
(h) not all owners of property in the proposed water district will benefit from the water
district; and
(i) the signatures of the owners of one home and property in the proposed district and the
value of that home and property were included in the petition totals notwithstanding that,
promptly after signing the petition, these owners asked that their signatures be disregarded and
that their support for the creation of the proposed water district be withdrawn.
Parties
4. The respondent Town of New Paltz is located within the jurisdiction of this Court, in
Ulster, County, New York.
5. Neil Bettez is the Supervisor for the Town of New Paltz.

6. Jeffrey Logan is the Deputy Supervisor for the Town of New Paltz and a Town
Council Member. Daniel Torres, Marty Irwin and Julie Seyfert-Lillis are Council Members of the
Town of New Paltz.
7. Each of these individuals and Mr. Bettez are made a respondent in his or her official
capacity with the Town of New Paltz..
8. Ingrid Beer owns her home and resides at 117 Plains Road, New Paltz, New York,
which is located in the Town of New Paltz. She has been, is and will be impacted by the actions
of the respondents as described below.
9. Petitioner Ingrid Beer and dozens of her immediate neighbors do not have municipal
water provided to their homes. Like these neighbors, Ms. Beer has a private well and uses water
drawn from an underground aquifer beneath her home for drinking and for personal and
household use.
Background
10. The Village of New Paltz, and portions of the respondent Town of New Paltz that are
not in the immediate vicinity of Plains Road, rely on components of the New York City
Watershed as the primary source of potable water for residents and businesses. Upon
information and belief, the respondent Town and the State University of New York College at
New Paltz obtain a significant portion of their potable water from the New York City Watershed
(Watershed).
11. The Watershed is a huge reservoir complex, a large part of which, known as the
Catskill Aqueduct, is located west of New Paltz, near the Catskill Mountains. The mammoth
Watershed complex was constructed by the City of New York beginning in the early 1900s
through approximately 1945.
12. Upon information and belief, many decades ago, commencing soon after they began
receiving water from the Watershed, local governments such as the respondent Town of New
Paltz and the Village of New Paltz were expected to have a backup public water source available
for use, should the Watershed become unusable or unavailable to them.
5

13. Most local governments in New York supplied by the Watershed arranged for such
backup sources.
14. The respondent Town of New Paltz and the Village of New Paltz, however, failed for
decades to arrange for and secure a comprehensive backup water supply system. Upon
information and belief, the Villages existing backup system consists of a few ponds and/or
reservoirs that would yield less than a weeks supply.
15. Upon information and belief, several years ago, the respondent Town of New Paltz
and the Village of New Paltz were notified by the City of New York that for ten week periods,
now scheduled for 2017 (one period) and 2018 or 2019 (two periods), public water will be
unavailable to them from the Watershed, due to scheduled maintenance and planned changes to
the Watershed system.
16. In approximately 2013, soon after being notified of these planned ten-week
shutdowns, the respondent Town of New Paltz and the Village of New Paltz investigated
potential alternate sources of public water supply.
17. Upon information and belief, this investigation project included consideration of
sources that could become a permanent supply for some or all of the public water needs of the
Village and/or Town of New Paltz.
18. As a part of this investigative project, multiple alternative water sources were
reviewed including, but not limited to, new and existing reservoirs and storage facilities, the
Wallkill River, groundwater sources, and possible interconnections to the municipal supply of
other communities, including the Town of Highland.
19. Upon information and belief, as part of an investigation for ground water sources,
more than 130 test borings were made.
20. Upon information and belief, as a part of the project, the Village of New Paltz
contracted for the excavation and placement of two large wells on property known as 101 Plains
Road in the Town of New Paltz.
21. Owned by David Roehrs, the property known as 101 Plains Road is located between
the Walkill River and Plains Road.
6

22. This property includes an area that has previously been used as a quarry. The 101
Plains Road property is located beside or in very close proximity to the New Paltz Rural
Cemetery, an historic burial grounds for human remains.
23. Plains Road, which is approximately two miles long, is a residential community of
primarily single-family homes. Dozens of residents, including petitioner, live in the vicinity of
101 Plains Road: on Plains Road, Shawangunk View Drive, Locust Lane, Woodland Drive and
other nearby streets.
24. A large farm growing organic produce and flowers, Taliaferro Farm, is located at
187 Plains Road. Separately, the homeowners at 133 Plains Road produce honey, for
commercial sale, from more than a million honeybees on their property.
25. The adjoining streets and much of Plains Road are in the Town but not the Village of
New Paltz. These homes on Plains Road and vicinity are not served by a municipal water or
sewer system. The homes have private groundwater wells and individual septic systems.
26. Upon information and belief, in early 2014, the Village of New Paltz, with the
knowledge and cooperation of the respondent Town and its officials then in office, arranged for
the placement of high-capacity water withdrawal and conveyance equipment on the Roehrs
property at 101 Plains Road.
27. In approximately late May, 2014, at the request of and on the authority of the
respondent Town and its officials then in office, large-scale water withdrawal testing began at the
101 Plains Road site.
28. Upon information and belief, as a part of initial testing, more than 100,000 gallons of
groundwater per day was withdrawn at this site.
29. Upon information and belief, no advance notice of this major water withdrawal was
given to nearby homeowners or the public at large.
30. Water levels in the well at Ingrid Beers home and the homes of other area residents
dropped significantly as a result of this initial testing.
31. Upon information and belief, on the second or third day of testing, the well pump
serving the home of a resident near 101 Plains Road had failed. Investigation revealed that the

water table dropped below this homeowners in-well pump and that continued pumping without
water had burned out the pump.
32. Upon information and belief, the 101 Plains Road test was then disclosed to this
homeowner. The Village of New Paltz thereafter reimbursed this homeowner or paid for the cost
of installing a replacement well pump in his home.
33. Significant problems arose in the homes of other area residents as well. For
example, upon information and belief, sulphur content, sulphur smells and other offensive odors
increased. Pumps in at least two other homes failed. Turbidity increased. Filters clogged.
34. These events led homeowners in the Plains Road community to ask whether
groundwater withdrawals or other disruptions were occurring in the area. Upon information and
belief, Village officials, and the respondent Town and its officials then in office, or their
representatives/ agents, then disclosed that groundwater withdrawals were underway as part of a
backup community water supply exploration project, and indicated that such withdrawals would
continue.
35. Thereafter, in July, 2014, with public notice but over the objection of many area
homeowners, the Village and respondent Town, through certain no-bid contractors, engaged in a
massive 72 hour test withdrawal, taking up to 400 gallons of groundwater per minute though
newly-installed, industrial-sized wells at the 101 Plains Road property.
36. Upon information and belief, withdrawal of hundreds of thousands of gallons per
day continued for three days or more.
37. Loud noises and significant light pollution associated with the equipment used in
the July test could be heard and seen from area homes. This was disturbing to nearby residents
and guests.
38. The water table below ground in the vicinity of 101 Plains Road dropped
significantly during the July test. This was verified by well monitoring equipment placed in
some area homeowner wells, by site visit testing of individual wells and, upon information and
belief, by monitoring equipment maintained at the test well site.
39. Testing following the July test indicated increased and, in several homes, new
instances of contaminants in the well water of area homes.
8

40. Contaminants identified included coliform bacteria, lead, iron, sulphur and more.
41. In many homes, severe sulfur (rotten egg) smells, foul odors and heightened
sulphur levels were found. Turbidity increased. Water filters clogged and failed.
42. These problems were a result of the testing procedures authorized or engaged in by
the Village and respondent Town.
43. The Village of New Paltz supplied bottled drinking water to approximately 20
homeowner families whose well water appeared to have been made non-potable by the July test.
44. Upon information and belief, the sources of which are conversations with area
homeowners and review of relevant documents, after the July test, the Village of New Paltz paid
for disinfection of some homeowner wells and retesting of their well water. Coliform bacteria
contamination nonetheless persisted in several of these homes.
45. The Village and respondent Town repeatedly refused requests to supply quantitative
test results concerning the July, 2014 test, i.e., results that would state the quantity of
contaminants as a percentage of the sample. With respect to coliform, for example, the test
results the Village and Town provided indicated only the presence or absence of coliform, not the
coliform level in the homeowners wells.
46. Petitioner Beer supplied engineer Clouser with the test results obtained from samples
taken at her home, by her own hydrogeologist, before and after the July test.
47. No coliform bacteria was found in the sample taken prior to the July test. In the
sample taken after the July test, on August 19, 2014, coliform bacteria of 6.4 cfu per milliliter
was noted.
48. With regard to coliform bacteria, the NYS Department of Health has determined that
the presence of coliform bacteria is an indicator of possible disease causing contamination in the
water supply.
49. When tested before the July test, the household water in several specific homes in the
vicinity of 101 Plains Road showed no or minimal levels of lead. After the July test, the water
emerging from faucets in these homes had lead contamination, which was in excess of the 0.015
mg/l maximum contaminant level recognized by the NYS Department of Health. See Exhibit A

(Survey of Plains Road area homeowners on ill effects of July, 2014 test withdrawals; Water
District Conversation Continues With Contention, New Paltz Oracle, 3/17/16).
50. Lead in the environment can be highly toxic. Lead in water at quantities above this
contamination level may cause brain, nerve and kidney damage, especially in children.
51. The private wells in the Plains Road area recovered, in terms of supply (i.e.,
quantity), from the July, 2014 test, but slowly.
52. Notwithstanding the contaminants the July, 2014 test procedures drew out, and the
precipitous drop in the water table caused by the test withdrawals, the respondent Town moved
forward with plans to designate the Plains Road site as a major source of backup water supply.
53. In a report dated September, 2014, consultants hired by the Village of New Paltzs
concluded that other options were viable, such as water from the Highland public supply system
and, potentially, water that could be drawn and treated from the Wallkill River. Each such
option, however, was deemed more expensive than use of the Plains Road site.
54. Significantly this report acknowledged that use of the Plains Road site to supply
public water during the aqueduct shutdowns would render the private wells of Plains Road area
residents unusable. The report concluded, [L]ateral drawdown rates were shown to affect the
Plains Road wells to the extent that an alternate water supply or well deepening would be
required. See Village of New Paltz Phase II Backup Water Supply Investigation, Final
Report, at 39 (Exhibit B).
55. Upon information and belief, the source of which is statements at Village Board
meetings by an employee of New York City assigned to the Watershed, the City of New York
agreed to pay the cost to design and build a Plains Road water withdrawal and distribution
system to supply the Village, as well as Town public supply customers. But New York City
would not agree to fund any other alternative reviewed in the consultants report.
56. At this point, the Village and respondent Town set forth on a path toward selecting
101 Plains Road as the site for this new backup water supply. For the homeowners in the Plains
Road vicinity who currently use well water, the Village and respondent Town began exploring
establishing a water district that could supply public water after the homeowners wells go dry.
10

57. Article 12-A of the Town Law sets forth the procedure most commonly used for the
establishment of a water district in New York State. Under this standard procedure, the Town
investigates the circumstances and establishes the proposed district by resolution.
58. Thereafter, the Town Law provides that if only a small percentage of residents in the
proposed district petition for a plebiscite, the Town must submit the district plan to the voters in a
referendum. If a majority of the owners of property in the proposed district disapprove the plan,
no water district is created.
59. The Village and respondent Town appeared to be moving toward creating a water
district under Article 12-A.
60. Article 12 of the Town Law sets up an alternate procedure for the establishment of a
water district. Article 12 contemplates a plan generated by the citizens themselves, presented by
petition to the Town Board for its consideration and approval. If the Article 12 effort is
successful, a water district will be deemed established. Under Article 12, there is no
authorization for a citizen referendum by which residents may veto the district.
61. However, absent a formal resolution, which itself is subject to permissive
referendum, a Town may not make expenditures or devote town resources to an Article 12
petition effort. This limitation is designed to ensure that the Article 12 petition truly arises from
citizen interest.
62. In other words, the law contemplates that an Article 12 petition may not spring from
or be motivated by an effort by town officials to avoid or circumvent the citizens right to a seek
a permissive referendum concerning the establishment of a water district.
The Petition and Order
63. On November 18, 2015, a petition was filed with the New Paltz Town Clerk
pursuant to Article 12 of the Town Law requesting the establishment of Water District #5, in a
portion of the Town of New Paltz.
64. Underground water pumped from below the 101 Plains Road Roehrs property would
be used to supply public water to Plains Road area residents, as shown on a map accompanying
the petition. Water from this source, supplied by the water district, would also be transferred by
11

water mains and piping to supply public water for residents of the Village and certain areas of the
Town of New Paltz.
65. The signatures of property owners in the boundaries of the proposed district who are
alleged to be supporting the petition accompanied the petition. The petition, exhibits and
signature pages are annexed as Exhibit C.
66. A public notice concerning the filing of the petition was published and notice of
public hearings was given. (Exhibit D.) Hearings were held before the Town Board on
December 8, 2015 and February 25, 2016. Video recordings of these hearings are accessible
online here: https://www.youtube.com/user/usiavideo/videos
67. On February 25, 2016, after said public hearing and all continuances thereof and
upon consideration [of] the evidence given thereat, the Town respondents purportedly approved
the creation of Water District #5, in accordance with said petition and the map and plan
accompanying the same and the map, plan and report on file with the Office of the Town Clerk
. See Order Establishing District, Town Board, Town of New Paltz, 2/25/16, annexed as
Exhibit E.
68. This Order Establishing District was filed with the Ulster County Clerk on
February 26, 2016. See Town Law 195 (1).
69. The text of the order indicates that the Supervisor and all four additional Council
members were present for the February 25, 2016 meeting. Exhibit E, page 1. Page five of the
Order states that the question of the adoption of the order was duly put to a vote on roll call
which resulted as follows.
70. However, the vote taken is left blank on the order, each officials name stated but the
form not indicating whether each officials vote was Aye, Nay or Abstain.

12

Jurisdiction and Venue

71. This Court has jurisdiction over these claims pursuant to Town Law 195 (2) and
CPLR 7801.
72. The Town of New Paltz is located in the County of Ulster. The Town Board meets
and conducts its work in Ulster County.
73. The actions alleged herein occurred in Ulster County.
74. Proposed Water District #5 is located in the Town of New Paltz, New York, within
the jurisdiction of this Court. The property at 101 Plains Road, from which public water
intended to be used as a part of the plan for Water District #5 will be pumped, is also located
within the Town of New Paltz.

Causes of Action
AS AND FOR A FIRST CAUSE OF ACTION
THE ORDER ESTABLISHING DISTRICT IS DEFECTIVE AND MUST BE VACATED IN
THAT THE ORDER DOES NOT SPECIFY THAT THE PETITION TO CREATE THE
DISTRICT WAS APPROVED BY A MAJORITY OF THE TOWN BOARD MEMBERS
PRESENT AT THE FEBRUARY 25, 2016 MEETING, NOR SPECIFY THE VOTES OF THE
SUPERVISOR AND COUNCIL MEMBERS PRESENT.
75. Petitioner repeats and re-alleges all of the paragraphs above.
Town Law 63 provides that [t]he vote upon every question shall be taken by ayes and
noes, and the names of the members present and their votes shall be entered in the minutes.
Every act, motion or resolution shall require for its adoption the affirmative vote of a majority of
the members of the town board.
76. The Order Establishing District at issue here was filed with the Ulster County
Clerk on February 26, 2016. Exhibit E . See Town Law 195 (1).
77. The text of the order indicates that the Supervisor and all four additional town board
members were present for the February 25, 2016 meeting. Exhibit E, page 1. Page five of the
order states that the question of the adoption of the order was duly put to a vote on roll call
which resulted as follows .

13

78. However, information about the vote taken is left blank. Each officials name is
specified but the completed form does not indicate whether each officials vote was Aye,
Nay or Abstain.
79. The statement following the blank voting report, that the order was thereupon
declared duly adopted, does not cure the failure to specify the ayes and noes nor demonstrate
that the vote was sufficient to approve the order. The order and the Town respondents action is
therefore defective under Town Law 63. The order must be vacated.
AS AND FOR A SECOND CAUSE OF ACTION
IN VIOLATION OF TOWN LAW 191, THE PETITION AND THE APPROVING ORDER
OF THE TOWN RESPONDENTS DID NOT PROPERLY DESCRIBE AND DEFINE THE
BOUNDARIES OF THE PROPOSED WATER DISTRICT
80. Petitioner repeats and re-alleges all of the paragraphs above.
81. Town Law 191 provides that a citizen petition to establish a water district shall
describe the boundaries of the proposed district or extension in a manner sufficient to identify the
lands included therein as in a deed of conveyance .
82. Here, no description of the boundaries of proposed Water District #5 accompanied
the petition and approving order. No metes and bounds description was provided. Nothing
sufficient to identify the lands included therein as in a deed of conveyance accompanied the
petition and approving resolution.
83. All that accompanied the petition and approving resolution regarding boundaries
was a sketched map (Exhibit C; Exhibit E), which does not meet the statutory standard.
84. By requiring a description sufficient to identify the lands as in a deed of
conveyance, 191 is designed to protect against uncertainty and subsequent disputes about
whether or not a property, or portion of a property, will gain the benefits or shoulder the costs
of a proposed district.
85. Here, the petition, notice and approving order did not provide a description of the
boundaries of the proposed district sufficient for a deed of conveyance. The petition was

14

therefore not sufficient within the meaning of Town Law 194 (1) (a). The resolution
approving the petition should be declared null and void.
AS AND FOR A THIRD CAUSE OF ACTION
THE PETITION SHOULD HAVE BEEN DISAPPROVED AND THE ORDER CREATING
THE DISTRICT SHOULD BE VACATED BECAUSE, IN VIOLATION OF ARTICLE 12 OF
THE TOWN LAW, THE PETITION, NOTICE OF PUBLIC HEARING AND RESOLUTION:
(A) USED AN ESTIMATED RATHER THAN MAXIMUM AMOUNT PROPOSED TO BE
EXPENDED; AND (B) UNDERVALUED THE AVERAGE ANNUAL COST PER
HOMEOWNER FOR WATER USE AND THE MAINTENANCE COSTS FOR WATER
DISTRICT EQUIPMENT
86. Petitioner repeats and re-alleges all of the paragraphs above.
87. Article 12 of the Town Law, specifically sections 191 and 193 require certain
disclosures in, respectively, the petition to create a water district as well as the notice of public
hearing on an accepted petition. Here, disclosures required by these sections were missing,
inadequate or incorrect.
88. Town Law 193 (1) (a) requires that the hearing notice on an accepted petition
specify the cost of the district to the typical home in the proposed district.
89. Here, the petition, notice and approving order did not specify such cost. It hedged
instead, stating that the estimated cost to the average user is estimated to be approximately
$18.00 per month ($216.00 per year) based upon a three (3) bedroom home with average usage
of 200 gallons per day based upon industry standard costs for the type of groundwater source and
supply public water system to be constructed. (Emphasis supplied.)
90. Moreover, this estimate significantly understated the average gallons-per-day
usage of the typical homeowner, as well as the likely cost per gallon. The United States
Geological Survey, an office in the U.S. Department of the Interior, concluded in 2005 that the
average New Yorker using public water supply uses 99 gallons of water per day. See Estimated
Use of Water in the United States in 2005, usgs, Circular 1344 at 20 (Table 6) (Exhibit F).
http://pubs.usgs.gov/circ/1344/pdf/c1344.pdf

15

91. According to the United States Environmental Protection Agency, the average
family of four in the United States uses 400 gallons of water per day. See U.S. Environmental
Protection Agency, https://www3.epa.gov/watersense/pubs/indoor.html (accessed 3/23/16)
(Exhibit F).
92. Thus the average family of four in a three bedroom home in the proposed district
would use approximately 400 gallons of water per day, not 200 gallons.
93. Furthermore, the estimate of 200 gallons per day per three bedroom household at a
cost of only $18.00 per month significantly and misleadingly undervalued the likely monthly
cost of the proposed district to district residents.
94. A recent professional survey (Exhibit G) shows the average cost per month of public
water supply for a family of four in 30 major United States cities. The estimate presented with
the petition here ($18.00 per month for 200 gallons per day) is significantly lower than the
lowest monthly average cost in any such city in the United States. The average monthly cost in
these 30 cities (for a family of four using 400 gallons per day) ranges from $23.26 per month to
$153.78 per month. Id.
AS AND FOR A FOURTH CAUSE OF ACTION
IN VIOLATION OF ARTICLE 12, THE PETITION AND THE APPROVING ORDER OF THE
TOWN BOARD DID NOT INCLUDE A DETAILED PLAN, AND ALSO DID NOT
IDENTIFY THE LOCATION OF ALL PROPOSED WATER OUTLETS IN THE PROPOSED
WATER DISTRICT, SUCH AS, BUT NOT LIMITED TO, WATER MAINS, DISTRIBUTING
PIPES AND WATER (FIRE) HYDRANTS
95. Petitioner repeats and re-alleges all of the paragraphs above.
96. In addition to the aforementioned requirement of a boundary description that is
sufficient for a deed of conveyance (Town Law 191), Town Law 192 provides that every
petition for a water district shall be accompanied by a map and plan, prepared by a competent
engineer duly licensed by the state of New York. Such map and plan:
shall show the source of water supply and a description of the lands,
streams, water or water rights to be acquired therefor, the mode of
constructing the proposed water works and the location thereof,
including reservoirs, water purification or treatment works, water
mains, distributing pipes and hydrants .
16

Id.
97. The map and plan that accompanied the petition here, and that was accepted in the
approving order of the Town Board, does not meet the requirements of Article 12 of the Town
Law.
98. For example, the petition and approving resolution do not disclose the mode of
constructing the proposed water works, as 192 requires.
99. The location of water mains and distributing pipes is not disclosed, as 192
requires.
100. Significantly, the petition and approving order make reference to an
intergovernmental agreement, apparently including the Town and Village of New Paltz, but such
agreement is not identified by date and is not appended to the petition and order. Thus, the
ability of residents to understand this aspect of the plan and enforce any plan promises is
compromised.
101. In fact, respondent Logan, the Deputy Town Supervisor, has already indicated that
any such intergovernmental agreement is negotiable, and is discussing extending the term of
such an agreement involving the Roehrs property from 30 years to 100 years. (Exhibit H.)
102. The planned inclusion of fire hydrants has been touted by some as a benefit of
creating this water district. For example, in the Plan Description (Exhibit C), the petition itself
states that [f]ire hydrants will be installed in the proposed water district to improve area fire
protection.
103. But the map and plan submitted and approved here do not identify the location of
hydrants, as Town Law 192 requires.
104. Depending on placement, a hydrant may have a negative effect on the value of a
home or property. For example, placement on the property itself, such in a prominent location
on a front lawn, may be aesthetically displeasing and/or present a hazard for children at play.
105. These are significant omissions. Upon information and belief, the source of which
is conversations with area homeowners, the property lines of many homeowners within the
proposed district extend well into the paved roadway that is denominated Plains Road. Yet
17

Exhibit B to the petition (annexed Exhibit C) states that water distribution mains will be
located in the road right-of-ways.
106. The homeowners were entitled to know and consider whether, and to what extent,
the placement of water mains and distributing pipes for the proposed district might intrude
upon, run astride or result in damage to their property.
107. Many trees along Plains Road and nearby properties in the district are more than
one hundred years old. Under 191, residents considering the petition, and commenting at the
public hearing, were entitled to know where underground mains and pipes will be placed, and
how such placement might impact their trees, lawns and yards.
108. In accordance with Town Law 191, residents were entitled to know specifically
where in the proposed district all water mains, distributing pipes and hydrants would be located.
Yet neither the map nor plan filed with the petition and purportedly approved by the Town
Board shows the location of these components of the proposed system.
109. The petition was therefore not sufficient within the meaning of Town Law 194
(1) (a). The order purporting to approve the petition should be declared null and void.
AS AND FOR A FIFTH CAUSE OF ACTION
MISREPRESENTATIONS AD FALSEHOODS IN THE PETITION RENDER
THE PETITION FRAUDULENT AND INVALID
110. Petitioner repeats and re-alleges all of the paragraphs above.
Among other representations, made in the petition and to residents asked to sign, the
petition, at (petition) Exhibit B, states the following:
This 400 gallon per minute withdrawal rate was proven safe and accepted by
the NYS Department of Conservation throughout the 10 week maximum
duration shutdown period following their agencys thorough review of all the
well testing data.
111. This statement is a material falsehood.
112. First, there is no NYS Department of Conservation. There is a New
York State Department of Environmental Conservation, and there is a New York City
Department of Environmental Protection.

18

113. Second, public water supplies are regulated by, among other entities, the
NYS Department of Environmental Conservation and the New York State
Department of Health. Neither agency has, as claimed, accepted as proven safe a
400 per gallon per minute, 10 week withdrawal rate at the Roehrs property.
114. To the contrary, in order to make such massive withdrawals,
withdrawals, the proponents of this plan (or, if established, the water district) must
seek and obtain a water withdrawal permit from the NYS Department of Health,
pursuant to NY Environmental Conservation Law 15-1501. No such permit has yet
been sought or obtained.
115. This statement, among others, fraudulently misrepresented the
regulatory status of the water withdrawal plan, and falsely represented that health and
safety concerns had been studied and dismissed by the regulating agency.
116. Under the circumstances, the petition is fraudulent and permeated with
fraud. It cannot stand.

AS AND FOR A SIXTH CAUSE OF ACTION

AUTHORIZED SIGNATORIES ON THE PETITION DO NOT REPRESENT
MORE THAN FIFTY PERCENT OF THE ASSESSED VALUE OF THE
PROPERTIES IN THE PROPOSED WATER DISTRICT, AND DO NOT REPRESENT MORE
THAN FIFTY PERCENT OF THE RESIDENT OWNERS OF REAL PROPERTY IN THE
PROPOSED DISTRICT
117. Petitioner repeats and re-alleges all of the paragraphs above.
118. Town Law 191 establishes the minimum requirements for a petition to establish a
water district under the citizen-generated, Article 12 procedure. To be valid, the petition must,
among other requirements:
be signed by the owners of taxable real property situate in the proposed district
extension thereof, owning in the aggregate at least one-half of the assessed
valuation of all the taxable real property of the proposed district as shown upon
the latest completed assessment-roll of said town.
19

Id.
119. The petition submitted to the Town Board on November 18, 2015 did not
bear the valid, authorized signatures of the owners of at least fifty percent of the assessed
value of all of the taxable real property in the proposed district.
120. Annexed as Exhibit I is a spreadsheet, presented in various colors. This,
together with the following paragraphs, identifies properties that were improperly
included among those whose owners favored the creation of proposed Water District
#5. .

121. The spreadsheet and following paragraphs also identify several properties

that are located in the proposed district, but for which the assessed value was not added to
the total assessed value of the district.
122. Corrected figures appear at the end of the spreadsheet annexed as Exhibit I.
This recapitulation shows that valid, authorized petition signatures submitted to the Town
respondents represent only thirty-eight percent (38%) of the assessed value of the
properties in the proposed district.
123. First, the following persons who signed the petition were not authorized to
sign alone, as the property is owned by joint tenancy:1
86.14-1-7
86.14-1-56
86.14-1-35

Assessed Value
Stern Joint Tenants Only one Sig. 145 Plains
286,941
Dolan Owners didnt sign 13 Woodland
257,129
Frenza/ Litchfield, Joint Tens. - Only one Sig. - 18 Woodland 317,228

124. Second, in the following instances, the property is owned in trust. The former
owner who apparently signed was not authorized to do so. There is no approving signature from
a trustee or other authorized individual.2
86.14-1-34.100 VanTassel in Trust, no Trustee Sig. 20 Woodland
86.14-1-33-100 Hess in Trust, no Trustee Sig. 22 Woodland
86.14-1-42
Beck in Trust, no Trustee Sig. 4 Woodland

Assessed Value
296,337
229,208
272,673

1 Copies of the property transfer deeds for each of these properties are annexed as
Exhibit J-1, J-2 and J-3, respectively.
2 Copies of the property transfer deeds for each of these properties are annexed as
Exhibit J-4, J-5 and J-6, respectively.
20

125. Third, in ten instances, signatures appearing in the petition, which are purported to
be the signatures of owners of property in the proposed district, are illegible. There is no proof
that these are authorized signatures of the owner or owners of these properties.
126. Accordingly, the value of the following properties should not have been included
among the value of approving properties, and the required fifty-percent threshold was not met:

21

Tax ID
Street Address
86.14-1-47
120 Plains
86.14-1-5
123 Plains
86.14-1-6-200 139 Plains
86.1-3-29
2 Locust Lane
86.1-3-26
5 Locust Lane
86.1-3-32
6 Locust Lane
86.1-3-33-120 2 Shawangunk
86.14-1-56
13 Woodland Dr.
86.14-1-36
16 Woodland Dr.
86.14-1-54
9 Woodland Dr.

Signature
Illegible
Illegible
Illegible
Illegible
Illegible
Illegible
Illegible
Illegible
Illegible
Illegible

Owner per Tax Roll Assessed Value

T. and C. Nolan
255,505
P. and J. Schmidt
233,564
G. and L. Bartalsky 220,297
J. and I. Fillette
252,970
R. and L. Wohlrab
283,267
M. Birnbaum
312,772
K. and J. White
270,099
J. and M. Dolan
257,129
J. and E. Burdick
250,990
Jason Iahn
286,832

127. Fourth, the property at 22-28 Cedar Lane is within the apparent boundaries of the
proposed district. But this property was not included in the total assessed value for the properties
in proposed Water District #5. The assessed value of this property must be added to the total
value of properties in the proposed district.
Tax ID
86.14-1-21

Street Address
22-28 Cedar Lane

Owner per Tax Roll

20-22 Cedar Lane, LLC

Assessed Value
260,000

128. Fifth, the value of the property of Mary and Theodore Cryer at 150 Plains Road
should not have been included among those requesting establishment of the water district.
129. Upon information and belief, the sources of which are Mary and Theodore Cryer,
Mary Cryer signed on November 15, 2015 but, soon thereafter, the couple regretted that she did
so. On December 7, 2015, less than three weeks after signing (and before the scheduled public
hearing), the Cryers filed with the Town a notarized request that their signature support be
withdrawn. (Exhibit K).
130. The Town respondents denied the Cryers request. Over the pairs continuing
objection, the Town respondents include the value of the Cryer property in calculations that, the
Town claims, takes the petition over the fifty percent threshold.
Tax ID
86.14-1-24-100

Street Address
150 Plains Road

Owner per Tax Roll

Mary and Theodore Cryer

Assessed Value
420,891

131. Gray v. Town Board of Town of North Hempstead, 303 N.Y. 575 (1964) should not
necessarily require a different result. In Gray, it is unclear how much time elapsed before the
22

signer sought to withdraw his signature. Here, the Cryers requested withdrawal within three
weeks, and in advance of the public hearing.
132. The petition was not sufficient within the meaning of Town Law 194 (1) (a),
because the authorized signatories on the petition do not represent fifty percent or more of the
assessed value of the properties in the proposed water district. The order approving the petition
should be declared null and void.

23

AS AND FOR A SEVENTH CAUSE OF ACTION

THE TOWN RESPONDENTS IMPROPERLY PAID FOR MAPS AND OTHER
SERVICES AND EXPENDED TOWN RESOURCES IN SUPPORT OF THE PETITION
WITHOUT A RESOLUTION OF THE BOARD APPROVING SUCH EXPENDITURES, IN
VIOLATION OF TOWN LAW SECTION 191-A, THEREBY IMPROPERLY EVADING AN
OPPORTUNITY FOR RESIDENTS TO SEEK A PERMISSIVE REFERENDUM ON THE
EXPENDITURES
133. Petitioner repeats and re-alleges all of the paragraphs above.
Article 12 of the Town Law sets forth procedures by which residents of a town may
petition a town board for the establishment of an improvement district, including a water district.
Article 12-A of the Town Law is the procedure most often used to initiate the creation of such a
district.
134. Under 12-A, the town creates the plan and approves it by resolution, but such
approval is subject to veto by majority vote, in a permissive referendum initiated by a small
group of residents. See Town Law 2109; Municipal Home Rule Law 24.
135. Because Article 12 is intended to be a citizen-initiated procedure, and (unlike
under Article 12-A) no disapproving referendum may follow, there are limitations on the manner
in which a town and town officials may collaborate with citizen initiators in the Article 12
petition process.
136. Thus, Town Law 191-a provides that the town board may adopt a resolution,
subject to a permissive referendum, appropriating a specific amount to pay the cost of preparing
a general map and plan for providing water facilities and services in any portion of the town
not included within the boundaries of any incorporated village, city or existing improvement
district in which such facilities or services are provided .
137. Here, the general map of Proposed Water District No. 5 provided to residents
during the petitioning effort, and submitted to the Town Board with the petition, bears the
copyright notice of David Clouser & Associates and a date of 08/31/15.
138. The Petition of Property Owners for Establishment of Water District (Exhibit C)
acknowledges that the map and plan accompanying this petition and annexed hereto as Exhibit
B were prepared by David Clouser & Associates, duly licensed by the State of New York.
24

139. The map and plan were clearly prepared by the towns engineering firm, Clouser
and Associates. Yet no resolution of the Town Board approved town expenditures to pay the
cost of preparing [this] general map. Town Law 191-a.
140. Upon information and belief, David Clouser, Clouser and Associates, and other
private firms and town officials participated in the creation and preparation of the plan for
proposed Water District #5. They were paid by the Town for their time, again without a
referendum of the Town Board authorizing such expenditures.
141. As a result of the Town respondents proceeding without a resolution, subject to a
permissive referendum, appropriating specific amount[s], petitioner and other residents were
denied their statutory right, pursuant to Town Law 191-a, to challenge the effort by seeking a
permissive referendum barring these expenditures.
142. Accordingly, the Town respondents proceeded unlawfully, the petition was not
properly made and accepted, and the petition was not sufficient within the meaning of Town
Law 194 (1) (a). The Town Boards order approving the petition should be declared null and
void.

25

AS AND FOR A EIGHTH CAUSE OF ACTION

THE PETITION SHOULD HAVE BEEN DISAPPROVED IN ACCORDANCE WITH TOWN
LAW 194 (1) BECAUSE NOT ALL PROPERTIES THAT WILL BENEFIT FROM THE
PROPOSED WATER DISTRICT ARE INCLUDED IN THE PROPOSED WATER DISTRICT
143. Petitioner repeats and re-alleges all of the paragraphs above.
144. The approved plan calls for withdrawal of massive water withdrawals from the
underground aquifer in the Plains Road community. The primary beneficiaries of these
withdrawals are the thousands of Village customers and smaller number of Town customers who
currently rely on water from the NYC Aqueduct.
145. Residents of the Village of New Paltz and the existing Town customers will benefit
greatly from the proposed water district. These village and town residents will receive water for
drinking, bathing and watering their lawns from the underground Plains Road aquifer. Yet the
district residents will be responsible for maintaining the water supply infrastructure from which
their neighbors will benefit. See, e.g., Petition of Property Owners, annexed Exhibit C) (The
expense of operation and maintenance of said Water District #5 shall be assessed, levied and
collected from the several lots and parcels of land within the proposed Water District.
146. Under the plan approved by the Town Board, underground water in the Plains Road
aquifer will be taken from under these homes, rendering the private wells unusable. The water
district will then sell this water previously a free commodity for the Plains Road community
back to these homeowners.
147. Worse, much of the withdrawn water will be pumped out of the Plains Road area to
supply public water for Village and other Town residents. Yet no properties in the Village or
elsewhere in the Town -- though clearly benefiting from the creation of the district are included
in the district. These beneficiaries are not included in the proposed water district, in violation of
Town Law 194 (1) (c),
148. The Town respondents erred in finding that all properties that will benefit from the
proposed district are included in the proposed district.
AS AND FOR AN NINTH CAUSE OF ACTION
26

THE PETITION SHOULD HAVE BEEN DISAPPROVED IN ACCORDANCE WITH TOWN

LAW 194 (1) BECAUSE NOT ALL PROPERTIES THAT ARE INCLUDED IN THE
PROPOSED WATER DISTRICT WILL BENEFIT FROM THE PROPOSED WATER
DISTRICT
149. Petitioner repeats and re-alleges all of the paragraphs above.
150. The public hearing record in this matter is replete with statements of district
residents who testified that they will not be benefitted by the creation of this district.
151. A report commissioned by the Village of New Paltz concluded that pumping the
planned quantity of water from below 101 Plains Road will render useless the private wells of
supplying the homes of many nearby residents. Many of these residents, like petitioner Ingrid
Beer, question the safety and reliability of municipal water and wish to maintain their wells.
152. Christopher Harp testified about the devastating effects of the district and planned
water withdrawals on the honeybee farm he maintains with Grai Rice. Harp testified that his
costs will go up dramatically when, no longer able to tap his own well, he will have to pay for
district water. See also comments of Grai Rice in Plains Road Residents in New Paltz Question
the Benefits of Water District 5, New Paltz Times, 2/27/16 (Exhibit L).
153. Although the placement of water pipes was not specified in the plan, Harp and
other residents worried that decades-old trees would be sacrificed to create the water coursing
system. Harps bees thrive on the environment created by these trees; he and his business will be
harmed by their destruction.
154. Others have expressed concern that the destruction of trees will harm the natural
beauty and diminish the value of their properties.
155. Additionally, the initial pump testing, for shorter periods at lower withdrawal rates,
stirred up multiple contaminants which appeared in the water in area homes, including coliform,
lead and other poisons. Residents who now enjoy clean water, with little filtration needed, are

27

not benefitted by the taking of that supply and substituting a risky source that must be heavily,
chemically treated.
Prior Proceedings
156. No prior request for the relief requested herein has been made in any Court.
157. Petitioner Ingrid Beer was among several petitioners who brought a special
proceeding in this Court against the Town and Village of New Paltz and their officials, and David
Clouser and his firm, David Clouser and Associates, concerning the earlier stages of the water
investigation project and water withdrawals from the 101 Plains Road site.
158. That special proceeding, brought pursuant to Article 78 of the CPLR, also sought to
require that the respondents invoke and comply with the state SEQRA environmental protection
law.
159. That earlier special proceeding, Beer, et al., v. Village of New Paltz, et al., Index
#14-3123, was dismissed in a written decision by the Honorable Christopher Cahill of this Court.
160. Nothing in that special proceeding, or the Courts decision and order dismissing that
lawsuit, affects the viability of the instant challenge to the purported establishment of a water
district in the Plains Road vicinity.

28

Prayer for Relief

WHEREFORE, petitioner respectfully requests that this Court issue a judgment and
order:
(1) annulling the aforesaid determination and order of the Town Board of the Town of
New Paltz, dated February 25, 2016, establishing Water District #5;
(2) awarding petitioner the costs and disbursements arising from the preparation,
initiation and prosecution of this special proceeding; and
(3) granting petitioner such other and/or further relief as this Court may deem just and
proper in the interests of law and/or equity.
Dated:

Albany, New York

March 28, 2016

Yours, etc.

Marty I. Rosenbaum
Attorney for Petitioner

Marty I. Rosenbaum
Attorney at Law
1971 Western Avenue, #105
Albany, New York 12203
(518) 542-1961

29

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
---------------------------------------------------------------------------------x
INGRID BEER,
Petitioner,
-against-

Index # ___________

TOWN OF NEW PALTZ; NEIL BETTEZ, AS SUPERVISOR,

JEFFREY LOGAN, AS DEPUTY SUPERVISOR AND
COUNCIL MEMBER; AND DANIEL TORRES, MARTY
IRWIN AND JULIE SEYFERT-LILLIS, TOWN COUNCIL
MEMBERS, EACH IN HIS OR HER OFFICIAL CAPACITY
WITH THE TOWN OF NEW PALTZ,
Respondents,
for a Judgment and Order pursuant to Article 78
of the Civil Practice Law and Rules.
----------------------------------------------------------------------------------x

VERIFICATION

STATE OF NEW YORK

COUNTY OF ALBANY

)
)
)

ss:

MARTY I. ROSENBAUM, an attorney duly admitted to practice law in the State of New
York, hereby affirms, under the penalties of perjury, as follows:

30

1. I am the attorney for the petitioner in the above-entitled action. 2. I have read the
foregoing verified petition and know the contents thereof.
3. The facts stated therein are true to my knowledge and belief, and as to those facts
stated to be on information and belief, I believe them to be true.
4. I have prepared this verification, and not petitioner, in accordance with CPLR 3020
(d) (3) because my office is located outside of Ulster County, where the petitioner resides.

Dated: Albany, New York

March 28, 2016
__________________________________
Marty I. Rosenbaum

31

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
---------------------------------------------------------------------------------x
INGRID BEER,
Petitioner,
-against-

Index # ___________

TOWN OF NEW PALTZ; NEIL BETTEZ, AS SUPERVISOR,

JEFFREY LOGAN, AS DEPUTY SUPERVISOR AND
COUNCIL MEMBER; AND DANIEL TORRES, MARTY
IRWIN AND JULIE SEYFERT-LILLIS, TOWN COUNCIL
MEMBERS, EACH IN HIS OR HER OFFICIAL CAPACITY
WITH THE TOWN OF NEW PALTZ,
Respondents,
for a Judgment and Order pursuant to Article 78
of the Civil Practice Law and Rules.
----------------------------------------------------------------------------------x

NOTICE OF PETITION AND VERIFIED PETITION

Marty I. Rosenbaum
Attorney for Petitioners
1971 Western Avenue, #105
Albany, New York 12203
(518) 542-1961

32

At a _____ Term of the Supreme

Court of the State of New
York, held
in and for the County of Ulster, at
Kingston, New York on the 28th day
of March, 2016. `

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
---------------------------------------------------------------------------------x
INGRID BEER,
Petitioner,
-against-

Index # ___________

TOWN OF NEW PALTZ; NEIL BETTEZ, AS SUPERVISOR,

JEFFREY LOGAN, AS DEPUTY SUPERVISOR AND
COUNCIL MEMBER; AND DANIEL TORRES, MARTY
IRWIN AND JULIE SEYFERT-LILLIS, TOWN COUNCIL
MEMBERS, EACH IN HIS OR HER OFFICIAL CAPACITY
WITH THE TOWN OF NEW PALTZ,
Respondents,
for a Judgment and Order pursuant to Article 78
of the Civil Practice Law and Rules.
----------------------------------------------------------------------------------x
ORDER SETTING TEMPORARY TERMS OF AN UNDERTAKING
PURSUANT TO TOWN LAW SECTION 195
Upon the annexed Notice of Petition and Verified Petition of INGRID BEER, verified on
March 28, 2016, the annexed affirmation of her attorney, Marty I. Rosenbaum, affirmed on
March 28, 2016, and upon all of the proceedings had herein,
LET the above named respondents appear before this Court in accordance with such
Notice of Petition on the 26th

day of April, 2016 at 9:30 a.m., or as soon thereafter as

counsel can be heard, with respect to such petition.

SUFFICIENT REASON APPEARING THEREFOR, LET service of a copy of this order,
the affirmation of Marty I. Rosenbaum dated March 28, 2016 and six copies of the Notice of
33

Petition and Verified Petition, personally on the Town Clerk of the Town of New Paltz, on or
before March 29, 2016, be deemed sufficient service on the Town and its respondent officials;
and it is further
ORDERED that the sum of $5,000.00, deposited by and on behalf of petitioner INGRID
BEER in the attorney escrow account of her attorney, Marty I. Rosenbaum, is hereby approved
by this Court, as to form, amount and sufficiency of sureties, in accordance with section 195 of
the Town Law, provided, however, that such determination is without prejudice to
reconsideration of the form, amount and sufficiency of the sureties by the Court on such return
date or at any other time by the Court.

Dated: Kingston, New York

March, 28, 2016

ENTER

_______________________
Justice of the Supreme Court

34

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
---------------------------------------------------------------------------------x
INGRID BEER,
Petitioner,
-against-

Index # ___________

TOWN OF NEW PALTZ; NEIL BETTEZ, AS SUPERVISOR,

JEFFREY LOGAN, AS DEPUTY SUPERVISOR AND
COUNCIL MEMBER; AND DANIEL TORRES, MARTY
IRWIN AND JULIE SEYFERT-LILLIS, TOWN COUNCIL
MEMBERS, EACH IN HIS OR HER OFFICIAL CAPACITY
WITH THE TOWN OF NEW PALTZ,
Respondents,
for a Judgment and Order pursuant to Article 78
of the Civil Practice Law and Rules.
----------------------------------------------------------------------------------x
MARTY I ROSENBAUM, an attorney duly admitted to practice law in the State of New
York, hereby affirms under the penalties of perjury as follows:
1. I am the attorney for INGRID BEER, the petitioner in the above-captioned special
proceeding in the nature of certiorari, pursuant to Town Law 195, that seeks to set aside a
determination of the Town respondents establishing a water district in the Town of New Paltz,
New York. Such certiorari proceeding is properly brought pursuant to Article 78 of the CPLR.
Siegel, New York Practice, 557 (2013).
2. Section 195 of the Town Law provides that, at the time of the application for such a
certiorari order, the petitioner shall give an undertaking approved by the supreme court, or a
justice thereof, as to form, amount and sufficiency sureties from which, if the petitioner is
unsuccessful, the Court can order the payment of costs and expenses as are incurred by [the
town] on account of the said certiorari proceedings, as shall be determined by the court.

35

3. Petitioner INGRID BEER has caused to be placed in my attorney escrow account the
sum of $5,000.00, as a proposed undertaking in this matter. Annexed is a bank statement
demonstrating this $5,000.00 deposit in my attorney escrow account.
4. Costs and expenses under Town Law section 195 are essentially limited to the costs
and disbursements incurred by the Town. See Reister v. Town Board of the Town of Fleming,
21 A.D.2d 548 (4th Dept. 1965) (reducing required undertaking to $2,000; damages are not
recoverable as costs and expenses under 195). Costs and expenses also do not include
attorneys fees. See Matter of A. G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1 (1986);
Gorman v. Fowkes, 97 A.D.3d 726 (2d Dept. 2012).
5. Under the circumstances, it is respectfully submitted that $5,000.00, to be held in my
attorney escrow account, is sufficient as to form, amount and sureties.
6. It is respectfully requested that this form and amount be approved by the court as a
sufficient undertaking for the commencement of this special proceeding. It is further requested
that the Court, as in the annexed proposed order, specify that such determination is without
prejudice to reconsideration of the form, amount and sufficiency of the sureties by the Court on
the return date of this petition, or at any other time.
Dated:

Albany, New York

March 28, 2016
____________________________
Marty I. Rosenbaum

36

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
---------------------------------------------------------------------------------x
INGRID BEER,
Petitioner,
-against-

Index # ___________

TOWN OF NEW PALTZ; NEIL BETTEZ, AS SUPERVISOR,

JEFFREY LOGAN, AS DEPUTY SUPERVISOR AND
COUNCIL MEMBER; AND DANIEL TORRES, MARTY
IRWIN AND JULIE SEYFERT-LILLIS, TOWN COUNCIL
MEMBERS, EACH IN HIS OR HER OFFICIAL CAPACITY
WITH THE TOWN OF NEW PALTZ,
Respondents,
for a Judgment and Order pursuant to Article 78
of the Civil Practice Law and Rules.
----------------------------------------------------------------------------------x

ORDER SETTING TEMPORARY TERMS OF AN UNDERTAKING

PURSUANT TO TOWN LAW SECTION 195

Marty I. Rosenbaum
Attorney for Petitioners
1971 Western Avenue, #105
Albany, New York 12203
(518) 542-1961

37

Introduction
17. The respondents have authorized and engaged in a wide-ranging New Paltz Water
Source Investigation Project (Project).
18. The effort has long been considered and identified as a comprehensive project.
For example:
(a) the May, 2013 Final Report of Hazen and Sawyer, P.C. and Legette, Brashears and
Graham, Inc., for the New York City Department of Environmental Protection (DEP), on
behalf of the Village of New Paltz is entitled Contract: EE-DSGN6 Assignment 23: Village
of New Paltz Backup Water Supply Investigation (Exhibit B [cover page and table of
contents]);
(b) bills respondent Clouser and his engineering firm, David Clouser & Associates, have
submitted to the respondent Village identify the project as the New Paltz Water Source
Investigation Project (Exhibit C, p. 9-1) and New Paltz Phase II Source Water Investigation
Project (Exhibit C, p. 9-3);
(c) late last month, when calling a special meeting of the Board of Trustees, the
respondent Village identified the Project on its website as the DEP Phase II Water Exploration.

11. Mary and Theodore Cryer own their home and reside at 150 Plains Road, New Paltz, New
York, which is located in the Town of New Paltz. They have been, are and will be impacted by
the actions of the respondents as described below.
12. Gail Freedman owns her home and resides at 121 Plains Road, New Paltz, New
York, which is located in the Town of New Paltz. She has been, is and will be impacted by the
actions of the respondents as described below.
13. Dale Grust owns her home and resides at 96 Plains Road, New Paltz, New York
which is located in the Town of New Paltz. She has been is and will be impacted by the actions
of the respondents as described below.
14. Donna Liebman owns her home and resides at 118 Plains Road, New Paltz, New
York, which is located in the Town of New Paltz. She has been, is and will be impacted by the
actions of the respondents as described below.
15. Pamela St. John owns her home and resides at 1 Shawangunk View Drive, New
Paltz, New York, which is located in the Town of New Paltz. She has been, is and will be
impacted by the actions of the respondents as described below.
16. Jennifer and Kevin White own their home and reside at 2 Shawangunk View Drive,
New Paltz, New York, which is located in the Town of New Paltz. They have been, are and will
be impacted by the actions of the respondents as described below.
\
; AND (C) FAILED TO DISCLOSE (AND INCLUDE IN THE CALCULATION OF COSTS)
THAT COSTS FOR THE PREPARATION AND PRESENTATION OF THE PETITION
COULD BE CHARGED BACK TO THE DISTRICT, ONCE CREATED
Town Law 0XX provides that, once established, a water district may be charged back
the costs incurred by the promoters of the district in creating the district. This possibility and the
38

amounts involved were not disclosed in the petition, in the public hearing notice or in the
resolution. This rendered each insufficient, in violation of Town Law Article 12.
If establishment of the district were to be upheld, these possible chargebacks, which were
not disclosed and quantified, should be barred by this Court.
If such order were to be given effect, this certiorari proceeding challenging the Town Boards
order is timely filed within the thirty-day statutory period. See Town Law 195 (2). See also
General Construction Law 20 (day of reckoning [here, 2/26/16] is not counted); General
Construction Law 25-a (when as here, period would end on a Sunday and/or public holiday
[here, Easter Sunday, 3/27/16], such act may be done on the next succeeding business day).

39