Tuesday, September 27, 2011

The Fate of the Waterfront

It was predictable, but when it happened, it was still stunning. The Common Council on Monday night voted to adopt the Generic Environmental Impact Statement, the first step toward adopting the LWRP. The motion to introduce the resolution was made early in the meeting--before the presentation by City Attorney Cheryl Roberts or any discussion. It was introduced by Fourth Ward Alderman Ohrine Stewart and seconded by Second Ward Alderman Abdus Miah.

Between the introduction of the resolution and the vote, a lot of things happened, but I won't keep you in suspense. When the resolution came to a vote, those voting aye were Common Council President Don Moore, Geeta Cheddie (First Ward), "Doc" Donahue (Fifth Ward), Dick Goetz (Fifth Ward), Abdus Miah (Second Ward), Wanda Pertilla (Second Ward), Sheila Ramsey (Fourth Ward), Ohrine Stewart (Fourth Ward), and Sarah Sterling (First Ward), who mitigated her yes vote by explaining, "I want to get this new zoning in place." The dissenting opinion was voiced by Ellen Thurston (Third Ward), who abstained, and Chris Wagoner (Third Ward), who, after protesting that, as with all other resolutions, this one should be introduced and the Council should vote on it in the week's time, voted no.        

Before all this, however, Moore presented an opening statement. After the meeting, I asked him for a copy of statement. At first, he refused, but when I said "No?" incredulously, he tore a paragraph off the bottom of the printed presentation and handed the rest to me. Here's the statement, without its final paragraph: 

The LWRP and its accompanying GEIS are complex documents. They are also human documents, the product of many people, involved from many points of view and responsibilities, each working to piece the pie together. Citizens, government officials, proofessionals--all have made their marks here.

I have spent two years with the LWRP, studying it, its background, and its foreground. Can it be called perfect? Of course not. Can it be described as a commendable accommodation of Hudson's aspirations for its waterfront, its communities and its economic development, with the realities of law and land, of doing as much as we can, while knowing what we want will take time, organization and money? Yes, it can.

As a City, certainly as your Common Council exercising our responsibility to you, we have taken this process as far, and as fairly, as we can. We have met and exceeded what the law asks of us, listened, and the document is much better for it.

We have balanced the interests of our most vulnerable neighborhoods by providing a plan to get the trucks off the streets of the west end of the City. We have taken legal steps to regulate the port--hours of operation, light, noise, dust, defining processing out of the port--and the causeway for a long as it is used. We have declined to designate a preferred route and instead provided alternative routes that can allow greater public access to the waterfront.

Is everyone happy? I think a more useful question is, can everyone be happy? LWRP's and SEQRA provide frameworks for doing as much as we can granting the potential inherent conflicts. It provides a check on imagining that somehow, just around the corner, one more piece will fall into place that will change the game, and everyone will be fully satisfied with the LWRP.

We want an LWRP that can draw the enthusiasm and support and recognition for what needs to be done to balance, to integrate to the greatest extent possible, the best uses of our mix of social, economic, and enviromental needs and opportunities. I personally believe that all the work that has been done over many years has brought us to a place where we can say, this is a valuable program that we should approve.

One comment: A key consideration in developing the waterfront is the current ownership of the Port and the South Bay by Holcim. I would like to make it as clear as I am able that I completely support the goal of the city obtaining ownership of both. But I have seen no evidence that this document, the LWRP and the GEIS, can accomplish that end through the tools available to a municipality. We have considered different strategies to obtain the port and the one that will work is a sale between a willing seller and a willing buyer. I want to see that happen and will work for it. I also want to hear from Holcim that they will move forward quickly on the easement and the land transfer.*

In the paragraph that Moore removed from his statement, he had referred to the meeting as a Common Council "work session," which calls into question the legitimacy of taking a vote, and also stated that "the floor is for the Council alone." He held to the latter, inviting questions and comments from the public only after the council had voted and he had announced that Roberts and Bill Sharp, the attorney from the Department of State, had to leave.

Roberts began her presentation of the most recent changes in the GEIS by reviewing the progress of the LWRP and GEIS since 2006, when she became involved in a process that had already been going on for nearly two decades. She explained that the last four months of revision had been necessitated by three developments:
Roberts then proceeded to explain, page by page, the changes made to the GEIS since May 2011. Many of the changes she explained went to the issue of "trying to get away from the notion that [the use of the causeway] is somehow prejudged" or a "done deal"; others addressed what actions by Holcim/O&G would trigger the need for a conditional use permit, since after the new zoning is adopted, changing South Bay from an industrial zone to a "Core Riverfront District," Holcim's current use of the port will go from being an "as of right use" to a "lawful nonconforming use." Roberts characterized the LWRP as "very protective of the environment" but explained that "protections could only be imposed if O&G/Holcim changed what they are doing now." She also stated that "the law presumes that eventually nonconforming uses will no longer be in existence."

When Roberts' presentation was complete, Wagoner asked, "Are we voting on this tonight?" His question was answered by Goetz, who said, "We're here to vote. Let's do it. Let's get on with it." When Thurston protested that she had a lot of questions and would have a hard time voting on the resolution at that time, Goetz chided, "If you didn't want to vote, you should have stayed away." The standing room only crowd disagreed with Goetz and applauded when Wagoner suggested that the aldermen should "take this, go to our constituents, and vote next week," Goetz's impatient attitude carried the day, and the Council voted. Once that happened, and Moore explained that the lawyers had to leave but he would say to hear comments from the audience, the aldermen started to disperse, without a motion to adjourn, and the meeting was over.

* The easements and land transfer Moore mentions involve an easement on South Bay, which would give the City the right to control South Bay in terms of conservation and development without taking title or assuming the responsibility of ownership. A second easement involves the roadway along the western edge of the railroad track which is the route to the "southern extension of the park"--Sandy Beach and East Jesus, south of the port--which is the property involved in the land transfer. The City of Hudson would take possession of this land.

Sam Pratt comments about last night's meeting on his blog: "Moore-onic."
Tom Casey reports on the meeting in the Register-Star: "Council OKs waterfront plan GEIS."    


  1. As gloom and doom descends over Hudson I would like to thank the Common Council for bending to power and money instead of their constituents.

  2. What Hudson has now is a Waterfront plan that no honest citizen can get excited about. There is no overarching vision, no reasonable hope of new jobs, no meaningful environmental protections, no restoration of the Bay on the horizon, no reason to expect anything even remotely approaching the Vision Plan's relatively modest goals from more than 15 years ago.

    Moore can claim, in his revisionist and syrupy statement, that this document has many contributors. But anyone who has followed this process closely knows that is an outright lie. The number of people who have had a meaningful impact on its contents can be counted on the fingers of one hand, and include the attorneys representing H/OG.

    Indeed, with each of the most recent iterations, Moore accepted wholesale what was handed to him by the attorney and planner, who worked almost entirely out of public view, often for many months at a time.

    The entire document has been structured to protect one foreign-owned corporation and its subsidiary. If you read the most recent batch of changes, for example, they correspond very closely to written demands made by H/OG. Community consensus and public acceptance have been tossed out the window.

    It is a massive missed opportunity, one that Hudson will regret for years. They should put a plaque on a boulder at the Waterfront commemorating the names of those responsible.


  3. Some moments of note; when asked if O&G could double the amount of aggregate moving thru the port on the road to the planned public beach, without any offense to the conditional use permit, the answer was Yes. When asked if we could enforce any conditions on hours of operation, the answer was No. When asked if O&G could change the nature of its business being operated on our waterfront, without our approval, the answer was "too speculative". When asked if we have any of the easements or agreements we need from Holcim O&G, to get to our beach for instance, to walk the causeway, or to generally access a large portion of our waterfront, the answer was No.

    Another interesting moment was when Wanda asked "whats an easement?" Then went on to say the changes were minor, the document understood, and the councils task was to pass it.

  4. Good comments all above. It's sad to see such a great opportunity as we had after the 2005 DOS decision regarding the cement plant go down the drain with this decision. Zoning the district a Core Riverfront District is a good idea but unfortunately there's a worm in the core.

  5. Perhaps I wasn't at the same meeting: the City Council (not an administrative agency of the City) can put reasonable time/day restrictions on operations of any business anywhere in the City. That was reiterated last night. Whether the City could shut down the port if the volume of aggregate were to be increased by a factor of 10 (or any other arbitrary amount) is "not sure." And this is what the attorney from DoS said -- in his admittedly nasal and really annoying voice and cadence. That question can only be answered by a judge, not a bureaucrat. As for the beach access, what I heard was that Holcim had committed to transferring title to that strip to the City (might still need an easement to access them on the land side but that the waterside rights were being granted to the City in fee). My hearings not what it used to be -- and I will re-listen to the hearing via the WGXC link -- but besides the question concerning what an easement is, I heard a completely different meeting than some of the commentators here.

  6. John,

    The DOS attorney cited two cases, both from Long Island, which stated unequivocally that without specified guidance in the document there is nothing a city can do to restrict the hours of operation. This was a specific question Ellen posed.

    Additionally, the statements by the DOS attorney regarding "intensification of use" were pretty clear, that volume is not covered by the conditional use permit, and as such, we have No ability to restrict it. It was a question I believe Ohrine posed very early in his presentation, you may recall he used his horse farm example.

    Holcim has made no formal legal commitment to anything. That was clarified last night, that Cheryl took the advice of DOS to work those "details" out later.

  7. I hate to say 'he said/she said' but I heard what Jonathan said.
    However, my hearing is not to good either, especially in the back
    room and Cheryl mumbles and swallows her words.

  8. Jonathan,

    I think we're talking about 2 different things: it's true that the City cannot change its zoning laws in a way to make an existing use illegal -- it simply makes the old use a "non-conforming use" which is grandfathered. This is true regardless of whether the rezoning is done within the rubric of a LWRP (which contains the zoning changes themselves) or in a stand-alone change to a single zoning designation. What the City can do, is to prohibit or reasonably restrict other new activities. It can also, bear in mind, restrict a grand fathered use if it reasonably finds such use an unreasonable threat to the health, welfare or well-being of the City's citizens and visitors.

    I do take issue with your understanding of the DoS attorney's statements: volume, noise, hours of operation -- all can be considered a change of use (and thus in the case of a pre-existing non-conforming use therefore prohibitable) if they rise to the level of a change in kind, beyond a mere change in degree (which he, and the law, characterize as an "intensification" of use). Thus, in the horse farm analogy, increasing from 10 to 100 head is not, in his opinion, enough of a change in degree to be deemed a change in kind. He may or may not be correct -- only a judge gets to determine that for sure (assuming a planning board decision on point is contested beyond administrative appeals).

    On the Holcim commitment issue you are correct: on re-listening to the recording I realized the combination of distance and mumbling got the better of my ears!

  9. This comment was submitted by "South Bay Task Force." Here's Part I:

    Mr. Friedman, aren't your considerations academic if no one has or will have a baseline of the present circumstances and uses - soon to be nonconforming uses - by which to gauge the company's future changes by?

    Whether O&G will intend to change a use or merely intensify it, what will the City measure the difference against? For example, with no site plan approval required, who is authorized to go out and measure the width of that road?

    We all know that the road is going to spread out, but apparently we don't all know that the City won't be able to do a damn thing about it (assuming that "the City" would even want to).

    What's to prevent O&G still using the same "public access" issue over the causeway as an offer in a next agreement, towards some further change they desire. Some change that's not huge, but will be divisive nevertheless, something between 20 and 30 horses, if you catch my drift).

    Since their road is not "complete" and last night we gave them the power to determine when it is, I predict that the divisive issue will continue to be "trucks through disadvantaged neighborhoods." It may be the gift to them that keeps on giving, and the 2nd Ward can kiss its truck prohibition good bye, for a long time anyway.

    Why does anyone suppose that Roberts' phrase "tantamount to a change of use" was dropped from the GEIS? (It's still in her October 2010 letter to Grennport's Alger). Someone should have pressed that point. She made it sound so innocent last night, yet it had always been one of her greatest blunders, assuming that she'd always wanted the vote on her "superb" work (Did the DOS man really say that, and before an up-or-down vote on that work? Unprofessional!)

    The phrase "tantamount to a change of use" was the premise of an entire assault that our group had worked out, and yet no one bothered to questioned her on having dropped it in her "edits." As I heard her dismiss it, her subtext was that it was too complex for the plebs.

    T. O'Connor

  10. Here's the continuation of the comment from "South Bay Task Force":

    On Holcim's "willingness" to consider a public easement, ("willingness" is from the FGEIS; while the language of the draft law refers to a "private road"), the Council accepted Roberts' word that a former DOS employee told her once that it would all be okay in the end. With DOS counsel sitting in the room, in the present, they simply took her word for it yet again. (We have a dossier of her fabrications, and a list just as long cataloguing the gullibility of the successive Councils)

    I wish you had a closer seat to hear all of this, though apparently it wouldn't have made any difference if the entire City were as learned as only a handful of us may be.

    With only a little time left, there are ducks to get in order. At the top of the list is a single, simple question that Roberts refuses to answer, despite our many attempts:


    That letter pre-explained the pointlessness of all of Roberts' work for the next nine months. We paid for her sham work! (And it was sham, that much is true.) Don't we deserve to know whether that letter was suppressed?

    It is not mentioned in the 2009 Minutes, and was never a "received correspondence."

    If the answer to the question is "November 2009," which several aldermen believe is when they first saw, appended to the draft documents, then we may very well end up winning our Article 78 challenge, and perhaps getting her disbarred into the bargain.

    (The letter is mentioned in the GEIS, and is cited as being in an Appendix, but don't expect to find it online at the City website!)

    We seem to do that well enough in Hudson.

    Will anyone help us, or are you all going to roll over again, and let someone else do the heavy lifting? Hey, we've been trying to get an answer to that question for more than a year, but if enough people would bring pressure to bear on your aldermen, they'd have to at least ask the question.

    This takes more than academic ponderings. There are plenty of ways we can can still prevent this long-running miscarriage of SEQRA justice, and our Task Force is hard at work on them, and I believe other groups are too.

    But this one question - it could turn out to be the most important and useful one of all - is something that will take all of us. One little group cannot get the answer. Believe me, we've tried!

    T. O'Connor

  11. The real issue is not mere hours of operation, but regulating the overall "intensity of use" of parcels at the Waterfront. It was variously stated at the meeting on Monday that this was either too difficult or actually impossible to achieve within the LWRP.

    Had public comment been allowed, the Council and the audience would have heard from experts in the audience that in fact, such controls are commonly and successfully included in zoning amendments, such as LWRPs.

    By silencing the public, the Council President guaranteed that no one would hear any contrary evidence or opinion.

  12. Agreed: the heart of the matter is the overarching concern of "regulating the overall 'intensity of use.'"

    The regulations the public sought were not hard to achieve, while the insufficient substitutes for real controls in the GEIS were devised completely out of the public eye.

    By silencing the public, the Council President was exerting his control over the unwelcome dissent of a great many people.

    So why did we remain silent?