Supreme Court, Saratoga County, April 6, 2018

Scott H. Wyner, John F. Rusnica and Danielle C. Cordier for petitioner/plaintiff.

James E. Walsh for Town of Ballston, respondent/defendant.

William F. Ryan Jr. and Brian M. Quinn for Thomas J. Benuscak, intervenor/respondent/defendant.

Mary Elizabeth Slevin for Katz Construction & Excavation, LLC, intervenor/respondent/defendant.

Morgan S. Ruthman for The Spinney at Ballston Lake, LLC, intervenor/respondent/defendant.

Petitioner/plaintiff Richard A. Ball, Commissioner of the Department of Agriculture and Markets of the State of New York, commenced this combined action and special proceeding seeking declaratory judgment, relief in the nature of mandamus to compel, and injunction against respondents/defendants Town of Ballston and Timothy Szcepaniak (collectively, the Town).{**60 Misc 3d at 313} The core relief sought by petitioner is judicial enforcement of a determination and order issued by petitioner against the Town to redress actions taken by the Town to approve a new connection to the public water supply for a proposed residential development, because it is located within Saratoga County Agricultural District No. 2. As will be discussed below, the court finds that issuance of the determination and order was premature, in that petitioner failed to apply the procedure found in Agriculture and Markets Law § 305 (4) to the Town's actions, and directs that an appropriate review of the project be conducted.

Petitioner's Claims

According to the petition and the exhibits annexed to it, on April 6, [*2]2004, the Town adopted Resolution 04-46 concerning the creation of an Extension 14 to Burnt Hills-Ballston Lake Water District No. 2. Given the location of Extension 14 within Agricultural District No. 2, Resolution 04-46 limited lateral connections to the public water supply provided through Extension 14 to either agricultural or then-existing nonagricultural uses. On August 5, 2004, petitioner's predecessor as Commissioner issued a letter to the Town, in which he determined that, given the restriction on lateral connections adopted by the Town, Extension 14 would not have an unreasonably adverse effect on agriculture. On May 31, 2016, the Town Board passed Resolution 16-108, entitled "Approve Expanding and Extending Burnt Hills-Ballston Lake Water District No. 2 to Include Parcel 238.-1-39.12 (Falconer Lane Subdivision Off Goode Street)," on which intervenor/respondent/defendant Thomas J. Benuscak has planned a housing development. That parcel is also located within Saratoga County Agricultural District No. 2.

After the passage of Resolution 16-108, petitioner was contacted by a resident of the Town reporting a possible violation of the restriction on lateral connections to Extension 14 found in Resolution 04-46. Petitioner conducted an investigation and concluded that through Resolution 16-108, the Town was improperly allowing Benuscak to make a lateral connection to Extension 14 for a nonagricultural use. On September 19, 2016, petitioner issued a determination and order pursuant to Agriculture and Markets Law § 36, in which petitioner determined that lateral extensions of water lines within the{**60 Misc 3d at 314} Agricultural District violated the restriction previously adopted by the Town Board in its Resolution 04-46 and thus violated Agriculture and Markets Law § 305 (4). Petitioner ordered the Town to withdraw all approvals previously granted for lateral extensions within the Agricultural District and to desist from approving lateral connections to parcels within Extension 14 "until such time that the land has been removed from the Agricultural District." According to petitioner, the determination and order was served on the Town and no response was received.

At some point thereafter, the Town submitted a preliminary notice of intent (PNOI) to extend its Consolidated Water District to provide water to the Benuscak subdivision. By letter dated December 20, 2016, petitioner's director, Michael Latham, informed the Town that this action violated the restriction on lateral connections in Resolution 04-46, as well as the determination and order. By letter dated February 17, 2017, counsel for the Town submitted a final notice of intent to extend the Consolidated Water District (the FNOI) to provide service to the Benuscak subdivision. On February 28, 2017, petitioner commenced this action/proceeding seeking (1) a declaratory judgment holding that the Town is bound by the "mitigation undertaking" set forth in Resolution 04-46, (2) mandamus to compel the Town to comply with Resolution 04-46 and the determination and order, and (3) a permanent injunction against water line connections to Extension 14 for nonagricultural uses. The Town served an answer dated March 21, 2017.

Intervention

The court granted three motions for leave to intervene. Benuscak brought the first of these, which was granted in a decision and order of the court issued on June 6, 2017. Benuscak served an answer dated March 21, 2017.

Intervenor/respondent/defendant Katz Construction and Excavation, LLC served an answer dated November 29, 2017, which was amended on December 14, 2017. Katz also plans a nonagricultural development within Agricultural District No. 2, for which connection to the public water supply involves restrictions adopted by the Town in 1996 (Resolution 96-85). By Resolution 16-107, the Town Board extended Water District No. 2, [*3]allowing Katz to connect to the public water supply. In November of 2016, the Town filed a PNOI relative to the Katz project. By letter dated January 13, 2017, Director Latham advised{**60 Misc 3d at 315} the Town that its approval of a lateral extension violated Resolution 96-85 and Agriculture and Markets Law § 305 (4). Thereafter, the Town filed an FNOI regarding the Katz project. Petitioner issued a separate determination and order relative to the Katz development on June 23, 2017, with operative language similar to that found in the determination and order issued relative to the Benuscak development.

Intervenor/respondent/defendant The Spinney at Ballston Lake, LLC served an answer dated November 29, 2017. Spinney's planned nonagricultural development will be partially located within Agricultural District No. 2 and will rely on a connection to Extension 7 of Water District No. 2. On the record here, no resolution, notice of intent (NOI) or determination and order has yet been issued for the Spinney project.

Intervention was granted by the court based on the common questions of law and fact presented by the interests being asserted by the intervening developers, and by the actions of the Town in addressing those interests. For ease of reference, those arguments will be addressed collectively and the responding parties will be referred to collectively as "respondents" unless the issue involves a single party. Two matters require attention before the gravamen of petitioner's claims is discussed.

Affirmative Defenses

The answers served by respondents contain numerous (as many as 23) affirmative defenses. Petitioner argues that the statutory framework of CPLR article 78 precludes affirmative defenses, citing CPLR 7804. There is case authority holding that affirmative defenses are allowed in "hybrid" declaratory judgment/article 78 proceedings such as this one (see e.g. Matter of Jenkins v Astorino, 155 AD3d 733 [2d Dept 2017]). Nonetheless, a party asserting an affirmative defense has the burden of proving it by a preponderance of the evidence (Siegel, NY Prac § 223 at 381 [5th ed 2011]; see Matter of Carriero v Town Bd. of Town of Stillwater, 41 AD3d 1011 [3d Dept 2007]; Jandreau v La Vigne, 170 AD2d 861 [3d Dept 1991]). Respondents have not offered proof to support many of their affirmative defenses. Those affirmative defenses for which no proof has been submitted are deemed abandoned.

Collateral Attack

In their submissions, respondents have focused most of their argument on (1) the power of the Town Board to amend or supersede Resolution 04-46, (2) the validity of Resolution 04-46{**60 Misc 3d at 316} as a mitigation undertaking under the Agriculture and Markets Law, (3) the validity of the procedure followed by petitioner when issuing the determination and order, and (4) the lack of legal basis for the determination and order. Petitioner argues that, having failed to challenge the determination and order either through administrative review or CPLR article 78 proceedings, respondents are precluded from collaterally attacking the determination and order in this proceeding. Petitioner correctly states the general rule that the proper avenues for challenging an administrative order are either administrative appeal or CPLR article 78 proceeding, so that failure to undertake either course of action within the applicable limitations period forecloses collateral attack (see e.g. Steen v Quaker State Corp., 12 AD3d 989 [3d Dept 2004]; Adirondack Park Agency v Bucci, 2 AD3d 1293 [4th Dept 2003]; Cahill v Harter, 277 AD2d 655 [3d Dept 2000]). In this case, petitioner's determination and order was issued on September 19, 2016, so that the time to seek its review has expired (Agriculture and Markets Law §§ 36-37).

There are, however, exceptions to the general rule. A collateral attack on an administrative order can be based on the agency's complete lack of jurisdiction to issue it, or on a constitutional infirmity in the order itself (see e.g. Matter of Public Serv. Commn. of State of N.Y. v Rochester Tel. Corp., 55 NY2d 320 [1982]; Egan v Niagara Mohawk Power Corp., 214 AD2d 850 [3d Dept 1995]; Axelrod v Branche, 90 AD2d 862 [3d Dept 1982]). Also, respondents aim some of their arguments at the propriety of this action/proceeding, rather than the propriety of either determination and order, so that those arguments would not be precluded as collateral attacks.

The net effect of this winnowing is that many of respondents' arguments have either been abandoned or are precluded. Some survive, however. The remaining arguments are: (1) this action/proceeding is barred by Town Law § 195, (2) consolidation of water districts within the Town rendered this proceeding moot, (3) waiver, (4) laches, (5) petitioner is guilty of unconstitutional selective enforcement, (6) petitioner lacked jurisdiction to issue the determination and order, and (7) petitioner fails to show an adverse agricultural impact in the absence of a judicial enforcement. Several of these arguments can be disposed of briefly.

A. Unavailing Arguments

Town Law § 195

{**60 Misc 3d at 317}This action/proceeding is not barred by Town Law § 195. A determination or order of a town board that is certified by the town clerk and filed with the county clerk is made "final and conclusive" by section 195, unless it is subjected to review by certiorari. There is no evidence in the record that either Resolution 16-107 or 16-108 were certified and filed as required by section 195. Respondents submit copies of documents showing the certification and filing of Resolution 15-174, by which the Consolidated Water District was established, but that resolution is not the subject of petitioner's determination and order, nor is it challenged here.

Mootness

The water district consolidation did not render this action/proceeding moot. The restriction on lateral connections is an obligation that survived the consolidation (General Municipal Law § 768). The Town Board was advised of this as it met to consider Resolution 16-107 and 16-108 by counsel for Benuscak, who had been retained by the Town at that time to look into the issue. The continuing nature of the obligation is logical; the water line formerly labeled as Extension 14 in Water District No. 2 still exists, albeit as part of a consolidated district with a different name. The pipe is still in the ground and it is still located within Agricultural District No. 2.

Waiver and Laches

This action/proceeding is not barred by waiver or laches. Petitioner commenced it within two weeks of the Town's FNOI filing for the Benuscak project in apparent defiance of the determination and order for which petitioner seeks judicial enforcement.

Selective Enforcement

Respondents have offered no evidence or argument to show one of the required elements of a selective enforcement defense: that petitioner's actions have been motivated by "impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure" (Matter of Community Related Servs., Inc. v Carpenter-Palumbo, 84 AD3d 1450, 1454 [3d Dept 2011]).

B. Agriculture and Markets Law § 305 (4)

While the above arguments are ineffective against petitioner's claims, the two remaining arguments raised by respondents serve to highlight an issue that has not been raised specifically. The review process provided for in section 305 was{**60 Misc 3d at 318} not formally applied to the Benuscak project or to the Katz project. The lack of such review has clouded the posture of petitioner's claims.

Statutory Language

[1] Petitioner has taken the position that the NOI requirement of section 305 (4) did not apply to Resolution 16-107 or 16-108. Instead, in the letters from petitioner's director, and in each determination and order, petitioner points to the Town's violation of its own prior resolutions as constituting violations of section 305 (4). The petition cites section 305 (4) (j) as its jurisdictional basis. Section 305 (4) (j) specifically empowers petitioner to "bring an action to enforce any mitigation measures proposed by a . . . local government, and accepted by the commissioner, pursuant to a notice of intent filing, to minimize or avoid adverse agricultural impacts from the proposed action." Attached to the petition are copies of Resolution 04-46 and the Town's May 2004 FNOI, which contain the restriction on lateral connections, as well as the August 5, 2004 letter from petitioner's predecessor accepting that restriction. Benuscak argues that the restriction was not actually proposed as a "mitigation measure" by the Town, but the court finds that argument to be unconvincing. The section of the FNOI that contains the restriction is entitled "Local Zoning Restrictions," but no party here argues that the lateral connection restriction is part of the Town's zoning code. Both documents also specify that the restriction was adopted in response to concerns raised by the Department of Agriculture and Markets. Moreover, counsel for the Town characterizes the restriction as a mitigation measure.

The language of section 305 (4) (j), however, contains a limitation. The last phrase limits an enforcement action to measures concerning "the proposed action." Petitioner asserts that allowing the Benuscak development to connect to the public water supply would violate Resolution 04-46, but the Benuscak development is not the proposed action for which that Resolution was offered as mitigation. The proposed action for which the lateral connection restriction was adopted in 2004 was the construction of a public water line to supply the town hall, with existing homes along the route of the water line allowed to connect to it. Petitioner does not argue that any violation occurred during construction of the water line, or that any of the existing homeowners connected to it improperly. On its face, section 305 (4) (j) does not apply, at least not as alleged by{**60 Misc 3d at 319} petitioner. This dovetails with the jurisdictional argument advanced by respondents.

Jurisdiction

Respondents argue that Agriculture and Markets Law § 36 grants jurisdiction only to compel compliance with a statute or rule, while petitioner seeks to enforce the "alleged promise" made by prior town boards to undertake mitigation measures. Respondents argue that each determination and order was, therefore, issued without jurisdiction, rendering both of them void and unenforceable.

Section 36 is part of article 3 of the Agriculture and Markets Law, which is entitled, "Investigation; Practice and Procedure; Violations; Penalties." Under section 32 (1) of that article, petitioner is given broad power to "investigate and report as to all matters within or pertaining to the powers and jurisdiction of the department." Section 36 provides that if an investigation reveals a failure to comply with the Agriculture and Markets Law, a rule of the department, or a [*4]general law relating to a matter within the jurisdiction of the department, petitioner can issue an order compelling compliance.

Each determination and order states that petitioner was contacted by a resident of the Town, who claimed that the water line connections authorized by Resolution 17-107 and 16-108, respectively, violated the restrictions contained in prior Town resolutions. Given the broad language of section 32 (1), petitioner had jurisdiction, and arguably a duty, to investigate these reports. The statutory violation alleged by petitioner, however, appears to be entirely derivative.

In the court's view, a violation of section 305 (4) was not established because the review process contemplated by the statute was never undertaken by petitioner for either the Benuscak project or the Katz project. Had such a review taken place, and an adverse agricultural impact identified that was not addressed by the Town, petitioner would have had recourse to multiple remedies, including those found in sections 305 (4) (g), (j) and 36.

It is worth noting that the court's reading of the statute shows that petitioner could have based either determination and order on a violation of section 305 (4) (a), by alleging that in passing Resolution 16-107 and/or Resolution 16-108, the Town had failed to

"use all practicable means in undertaking such action {**60 Misc 3d at 320}to realize the policy and goals set forth in this article, and [to] act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse impacts on agriculture in order to sustain a viable farm enterprise or enterprises within the district."

In that event, application of section 305 (4) (j) would have been appropriate. It is also worth noting that any failure by the Town to abide by section 305 where the Spinney project is concerned would also provide grounds for action by petitioner under section 36.

However, petitioner did not allege a violation of section 305 (4) (a), but instead relied upon violations of prior Town resolutions which, as noted above, did not trigger an applicable remedy. Without section 305 review of the Katz and Benuscak projects, issuance of a determination and order for those projects was premature and amounted to an action in excess of petitioner's jurisdiction (CPLR 7803 [2]). This argument could not be raised here by respondents, as it would amount to an impermissible collateral attack (see e.g. Steen v Quaker State Corp.). Nonetheless, the lack of a specific finding of adverse agricultural impact arising from either project is relevant.

Adverse Agricultural Impact

Respondents argue that petitioner has the initial burden of showing an adverse agricultural impact in the absence of judicial enforcement of the determination and order. True, a petitioner in a proceeding under CPLR article 78 seeking mandamus relief must present "factual allegations of an evidentiary nature or other competent evidence tending to establish his or her entitlement to the requested relief" (Matter of Cumberland v Commissioner of Corr. & Community Supervision, 131 AD3d 735, 736 [3d Dept 2015] [citations omitted]). According to respondents, petitioner cannot make such a showing, because there will be no adverse impact on agriculture arising from the Town's decision to supply water to respondents' projects; the land in question is not being used for agriculture. The Katz FNOI also mentions a lack of some specified impacts on other farms due to the amount of open space planned within the development. Petitioner argues, essentially, that an adverse agricultural impact has already been acknowledged by the Town, as evidenced by Resolution 96-85 and[*5] 04-46.

The court notes that section 305 (4) (a) speaks in terms of avoiding adverse impacts on agriculture "in order to sustain a{**60 Misc 3d at 321} viable farm enterprise or enterprises within the district." The inquiry thus appears to be broader than respondents would have it. It is not limited to whether the particular tract of land in question is being farmed or to the particular outlines of the planned development, but includes all potential effects on any active farming operations within the agricultural district. These could arise through changes in ground water, drainage, transportation and a host of other factors. By electing to issue a determination and order for each project based on prior town board resolutions, petitioner has not actually addressed this central inquiry, even though the mechanism to do so has been invoked by the Town.

Despite letters from petitioner's director, the Town filed an FNOI for each project. Those two documents state—and respondents argue here—that the Town will not acquire any interest in land. However, the Benuscak FNOI specifically states that Benuscak will dedicate the water infrastructure (along with road right-of-way in which it will be placed) to the Town. The Katz FNOI does not specifically mention dedication, but the affidavit from engineer Jason Dell submitted by Katz states that the water lines constructed by Katz will be dedicated to the Town. Dedication is a transfer of an interest in land to a government entity for public benefit (Matter of Jasinski v Hudson Pointe Homeowners Assn., Inc., 124 AD3d 978 [3d Dept 2015]). Therefore, the Town will indeed acquire an interest in the land occupied by both projects. Moreover, the Town's act of filing the PNOIs and FNOIs acknowledges the applicability of section 305 (4) (b). Petitioner's letters to the Town rejecting the two PNOIs appear to overlook this fact. Petitioner should have set in motion the procedures found in section 305 (4) (b), (d) and (e).

C. Conclusion

In sum, the court finds that when petitioner issued a determination and order in response to Resolution 16-107 and 16-108, he acted in excess of his jurisdiction. By failing either to allege and support in this proceeding a violation of section 305 (4) (a) or to conduct an appropriate review of the FNOI filed for each project, petitioner did not establish a statutory violation to support action under section 36. That does not mean, however, that an adverse agricultural impact or a statutory violation does not arise from either project.

The appropriate course is to return to the FNOI filings and follow the procedure laid out in section 305 (4), a process that{**60 Misc 3d at 322} has been initiated by the Town for both the Benuscak and Katz projects. Petitioner would be afforded the opportunity, in conjunction with other entities, to evaluate the effect of the proposed action on agriculture, including any conflict with Resolution 04-46 and 96-85. Petitioner would also be able to propose alternative action. If necessary, petitioner could seek action by the Attorney General to enjoin any violation of section 305 (4), including any failure by the Town to choose alternatives which minimize or avoid adverse impacts on agriculture (§ 305 [4] [a]). If any mitigation measures were adopted, section 305 (j) would then become available to petitioner to enforce them. Section 36 would remain available to address any violation of section 305.

The court's reading of section 305 (4) shows that petitioner's power to review a proposed action is not limited by statements made in either FNOI. Section 305 (4) (a) states that adverse impacts on agriculture to be avoided "shall include" those identified in the NOI, but does not limit consideration to those impacts identified in the NOI. Moreover, as discussed above, the Town would acquire an interest in the Benuscak and Katz properties despite statements to the contrary [*6]in each FNOI. The statement in the Benuscak FNOI that the current owner of the property "will be expressly waiving [its] provisions" is similarly unavailing, since the Town filed the FNOI rather than submitting a written waiver of section 305 (4)'s provisions. The Katz FNOI states that the landowner has waived application of section 305 (4) (b), but no signed waiver is present in the record here.

Remedy

Petitioner seeks declaratory judgment, mandamus and injunctive relief. All three remedies rest in the court's discretion (see e.g. Clarity Connect, Inc. v AT&T Corp., 15 AD3d 767 [3d Dept 2005] [declaratory judgment]; Matter of Douglas v Travis, 290 AD2d 903 [3d Dept 2002] [mandamus]; Xiaokang Xu v Xiaoling Shirley He, 147 AD3d 1223 [3d Dept 2017] [permanent injunction]). Indeed, the court is empowered to fashion relief not sought by either party, if it is supported by the record and chosen in order to do justice (CPLR 3017 [a]; see e.g. Town of Caroga v Herms, 62 AD3d 1121 [3d Dept 2009]). This is particularly so where the public interest is concerned (see e.g. State of New York v Barone, 74 NY2d 332 [1989]).

Petitioner's request for declaratory judgment will be denied. Declaratory relief is appropriately denied where another adequate{**60 Misc 3d at 323} remedy is available (see e.g. Matter of Gable Transp., Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]). The core question here is the potential for adverse effects on agriculture presented by Resolution 16-107 and 16-108. The legislature has laid out the process to make that determination in section 305 (4). Accepting the parties' invitation to engage in analysis of the relative power of a state agency and a municipal corporation would not serve to address the core question.

[2] Likewise, petitioner's request for relief in the nature of mandamus compelling respondents to adhere to Resolution 04-46, 96-85, and each respective determination and order, will also be denied. As discussed above, petitioner has not yet established a statutory violation to serve as the basis for issuing either determination and order. The court will not, therefore, direct the Town to comply with either document. In addition, mandamus to compel lies only to require an administrative official to perform a "nondiscretionary, ministerial duty" (Matter of Hassig v New York State Dept. of Health, 5 AD3d 846, 848 [3d Dept 2004]). The review process called for in section 305 (4), including consideration of existing Town resolutions, requires the exercise of discretion by all parties addressing a proposed activity within an agricultural district.

This leaves petitioner's application for injunctive relief. Petitioner seeks to have the Town permanently enjoined from approving any water line connections for nonagricultural uses within Agricultural District No. 2. In view of the discussion above, the court finds that petitioner has not made the showing of irreparable injury required for such an injunction. On the other hand, the record justifies the grant of a mandatory injunction directing performance of the review process found in section 305 (4). The benefits from such an injunction are set forth above. The potential harm to respondents chiefly takes the form of a delay in the proposed projects in order to allow section 305 (4) review to take place. The process outlined in section 305 (4) is fairly brief when compared to the overall timelines for the developments outlined in the parties' papers, so that in the court's view, the benefits of section 305 (4) review outweigh its detriments (see e.g. Marsh v Hogan, 81 AD3d 1241 [3d Dept 2011]).

Given the lack of any town board resolution or determination and order applicable to the Spinney project, respondent Spinney will not be directed to participate in section 305 (4) review at this time. Given the discussion above, however, the{**60 Misc 3d at 324} Spinney project will remain subject to action by petitioner should a violation of section 305 (4), or any other applicable statute or rule, occur.

The parties' remaining contentions have been considered, but do not alter the outcome. Therefore, in consideration of the foregoing, it is hereby ordered, adjudged and decreed that the complaint seeking a declaratory judgment as to the binding effect of Resolution 04-46 and 96-85, the Town's alleged violation of those resolutions and the sufficiency of the FNOI filed by the Town for the Benuscak project and the Katz project is dismissed without prejudice; and it is further ordered, adjudged and decreed that the petition seeking relief in the nature of mandamus to compel compliance with Resolution 04-46, 96-85 and the determination and order issued with respect to Benuscak project and the Katz project is denied; and it is further ordered, adjudged and decreed that the "FINAL NOTICE OF INTENT TO UNDERTAKE AN ACTION WITHIN AGRICULTURAL DISTRICT NO. 2 (SARA002) Petition for Thomas J. Benuscak Water District Extension," filed with petitioner by respondent Town of Ballston on or about February 21, 2017, is hereby deemed to have been filed as of the date of this decision, order and judgment; and it is further ordered, adjudged and decreed that the Department of Agriculture and Markets shall undertake a review of the final notice of intent referenced in the preceding paragraph, pursuant to Agriculture and Markets Law § 305 (4); and it is further ordered, adjudged and decreed that respondents Town of Ballston and Thomas J. Benuscak, and/or their agents and affiliates, shall comply with all provisions of Agriculture and Markets Law § 305 (4) applicable to them regarding the review directed in the preceding paragraph; and it is further ordered, adjudged and decreed that the "FINAL NOTICE OF INTENT AND AGRICULTURAL IMPACT STATEMENT WITH RESPECT TO AN ACTION WITHIN AN AGRICULTURAL DISTRICT Petition for KATZ-ROUTE 50 Water District Extension" previously filed with petitioner by the Town of Ballston is hereby deemed to have been filed as of the date of this decision, order and judgment; and it is further ordered, adjudged and decreed that the Department of Agriculture and Markets shall undertake a review of the final notice of intent referenced in the preceding paragraph, pursuant to Agriculture and Markets Law § 305 (4); and it is further ordered, adjudged and decreed that respondents Town of Ballston and Katz Construction and Excavation,{**60 Misc 3d at 325} LLC, and/or their agents and affiliates, shall comply with all provisions of Agriculture and Markets Law § 305 (4) applicable to them regarding the review directed in the preceding paragraph; and it is further ordered, adjudged and decreed that all of the foregoing is awarded without costs to any party.