Arguments, no decision, in village lawsuit

MAYVILLE — State Supreme Court Judge Grace Hanlon heard arguments, but made no decisions, Monday in a court date for five Fredonia residents’ lawsuit against the village Board of Trustees’ Dec. 26 water resolution.

The session was over the village of Fredonia’s attempt to get the case thrown out. Hanlon reserved judgment on that, promising a written decision “as soon as I can.”

The Dec. 26 resolution stated that Fredonia plans to draw down its reservoir, decommission its treatment plant and buy water from Dunkirk. The sides in the lawsuit disagree over whether that committed Fredonia to a definite course of action. The plaintiffs feel that it did, and therefore, a State Environmental Quality Review (SEQR) should have occurred first.

Hanlon asked Mark Guglielmi, the attorney representing the village, if the resolution did commit Fredonia to a course of action. “They didn’t fund anything… or approve any physical alteration of the land,” he said.

Guglielmi noted the village was under a Dec. 31 deadline from the Chautauqua County Health Department to make a decision on its water future, or face possible citations. “They needed to know that years of inaction, of kicking the can down the road, was going to stop,” he said of the Health Department.

Hanlon mentioned LaBella’s fall 2023 report that laid out future water service options for the village. “I understand why they did what they did,” she said of the trustees’ resolution. “Couldn’t the board have just said, the plan was to look at all the options?”

She then wondered if the resolution did trigger SEQR requirements. Guglielmi argued that it did not, as it is a “Type 2” emergency action. “The village did declare a state of emergency as a result of the water quality,” he said.

Hanlon pressed him, “Isn’t picking (LaBella’s option) No. 3 a definite course of activities?”

Guglielmi responded, “No. The resolution did not commit them to that alternative. It certainly put it to the forefront. … The village is not down a path that it can’t turn away from.”

“I don’t understand how it’s not an action when this board in December 2023 chose an option,” Hanlon said.

Guglielmi said the current Board of Trustees could rescind the resolution if it wanted to. Two attempts to do so in January, led by Trustee Michelle Twichell who voted against the December resolution, failed.

“We were under a deadline and we had to meet the deadline. That’s what this resolution did,” Guglielmi said.

Richard Lippes, attorney for the plaintiffs, went through various court cases to argue that New York state courts have allowed lawsuits to proceed in similar situations.

“There’s nothing in the resolution that says, ‘We’ll consider this,'” he said. “They made the decision to do a certain act. … They certainly, at a minimum, determined planning and policy.”

Lipped responded to the contention that trustees could overturn the resolution, “What they’re saying is what happens in any case,” noting that any municipal board can overturn its own decisions.

“The problem is the violation of SEQR,” because the village did not do one before the resolution, he said. Fredonia’s trustees did eventually pass a separate resolution to do a SEQR, in April.

Hanlon questioned, “But is this really choosing a path?” Lippes said, “In this case, they specifically committed,” reading the resolution.

“The words are clear,” he said. “They have chosen to create and implement” water infrastructure decisions “on a permanent basis.”

Lippes added, “They told Chautauqua County in writing, ‘This is what we’re going to do.’ It can’t get any clearer than that.”


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