Friday, March 1, 2013

At the Planning Commission Public Hearing

It was originally announced that a special meeting of the Planning Commission would follow the public hearing to act on the subdivision required for the transfer of the nine acres from Holcim to the City of Hudson. The hearing was to be at 5:30; the special meeting at 5:45. Sometime yesterday, the special meeting was cancelled. It is reasonable to speculate that the decision to cancel the meeting may have been made after The Valley Alliance delivered its twelve objections to the land transfer and it seemed that hearing public comment might take more than fifteen minutes.

The four members of the Planning Commission present for last night's public hearing--Don Tillson (chair), Laura Margolis, Claudia DeStefano, and Glenn Martin--seemed inadequately informed about the issue before them. Tillson stated at the outset that they were only receiving public comment and no decision would be made. He also pointed out that when the Planning Commission did a site plan review they considered such things as egress and ingress and use as a park.

The first person to comment was Sarah Dibben, who expressed concern that "Hudson has closed itself off from partners who could help make it a park." She was referring to the condition of the transfer that required the City would not lease or sell the property to a not-for-profit for fifty years. She made the point that, when the terms of the transfer agreement were up, she would be 80 years old.

Cheryl Stuart, saying that she represented the Concerned Residents of Hudson, read a prepared statement which concluded by calling on the Common Council to rescind the resolution passed at the special meeting on February 11 and redraft it "before any further actions are taken by you the Planning Commission." Stuart called the information provided by the Common Council "erroneous and misleading." The basis for this allegation was that the parcel in question is actually two parcels: the area being transferred increased from seven acres to something more than nine acres by the addition of land that was once a Standard Oil distribution facility. She said the additional parcel "is most likely contaminated and was not included in the BOA [Brownfield Opportunity Area] application to New York State."

Stuart's objections were then taken up by Timothy O'Connor, who pointed out that only the seven-acre parcel was mentioned in the LWRP (Local Waterfront Revitalization Program) and the additional 2.4-acre parcel was never discussed in the GEIS (Generic Environmental Impact Statement). He explained that at one time Standard Oil had a wharf, a distribution depot, and oil tanks on the 2.4-acre parcel. He maintained that, since the 2.4 acres had never been mentioned in the LWRP, the statement in the resolution that the transfer "comports with the City's Local Waterfront Revitalization Program" is false. O'Connor advised Tillson that the Common Council was putting the Planning Commission in a litigious position.

Linda Mussmann, who chaired the Waterfront Advisory Steering Committee in 2006 and 2007, declared her support for the action, saying that it is "part of the LWRP and "key and crucial to completing the LWRP."

More than once during the hearing, Tillson explained that the only information the Planning Commission had about the transfer came from the Common Council, which raises the question of why Cheryl Roberts, who is counsel to the Planning Commission as well as the city attorney and was there at the beginning of the meeting, left the room--with no explanation--when Stuart started to speak. Was it because she had negotiated the land transfer with Holcim and for that reason had to recuse herself? Or was there some other reason?

Tillson ended the public hearing with the statement, "We don't have enough information yet to move ahead." A short time later he was observed heading up the stairs in City Hall, possibly to meet with the mayor and the city attorney.


  1. Cheryl Roberts is frightening with her fip-flop allegedly legal opinions.

    Why is she still here ???

  2. The fundamental problem here is that the City of Hudson continues to negotiate from a position of weakness. Holcim and its co-conspirators in the aggregate business are getting a free pass right through the city streets where most of our minority citizens live, right through the middle of the business district, through an important and sensitive tidal marsh, across a dangerous rail crossing, and within feet of our new Henry Hudson waterfront park. And what are we getting? No new jobs, no enhanced tax revenue, just nine acres of land that are accessible only by boat or helicopter. Such a deal....!

  3. The people involved with this proposed land deal are probably thinking that the City of Hudson fortifies its strategic position on the waterfront by owning nine acres just south of the Holcim dock. But that strikes me as fuzzy thinking; by agreeing to give the parcel away, Holcim is making the implicit concession that the land has no strategic or commercial value to the company. There is no feasible way for Holcim to expand their operations onto those little peninsulas of land, so the City would be making a foolish mistake to give anything away in trade for the property. Plus, the City would lose a bit of property tax revenue as a consequence of the deal.

  4. 1.

    This comment relates to two Common Council documents, both dated 2/11/13, and both available at the City of Hudson website: Resolution No. 1 and its Environmental Assessment Form (EAF), as required by the State Environmental Quality Review Act (SEQRA)

    A. Resolution No. I

    The Common Council Resolution incorrectly states that the land transfer "comports with the [LWRP]." The statement is not possible, since the separate 2.4 acre parcel - which the public has only just learned will be included in the land transfer - received no treatment in either the LWRP or its SEQRA-required Environmental Impact Statement, a study of the LWRP's potentially adverse effects.

    ("LWRP" is the state-sponsored Local Waterfront Revitalization Program; "GEIS" is the city-sponsored Generic Environmental Impact Statement.)

    The Resolution's reference to "the Parcel" misleads by giving the impression that "The Parcel" is currently one parcel. The land area involved in the transfer has comprised two parcels since the 19th century. That matter will become clearer after a title search is completed which the council ordered last September. (The council was informed in 2010 that Standard Oil formerly owned the smaller parcel, on which the Sanborn maps indicate there was a "distribution depot" which included giant, riverfront tanks.)

  5. 2.

    B. Environmental Assessment Form (EAF Short Form)

    EAF Part I.

    The first part of the EAF asks 12 questions, two of the council's replies for which are problematic.

    The reply in number six reiterates the false impression that the parcel under consideration is currently one parcel (an impression which becomes the premise for misstatements in Part II of the EAF).

    Question number ten asks whether the "action involve[s] ... funding now or ultimately from any other governmental agency ...?"

    Because the city has already applied for state funding through the NYS DOS Brownfield Opportunity Areas Program (BOA), for the council to have checked "No" here amounts to either a gross dereliction of duty or an intentional misstatement - and technical misfiling - of an instrument.

    Note that while the city's BOA Program application encompassed the approximately 7-acre parcel which was included (if cursorily) in the LWRP/GEIS, the BOA application did not include an adjoining 2.4-acre parcel, the same acreage the public has just learned will be included in the land transfer. (The public only learned it this week, but judging from the detailed planning maps on the Planning Commission's desk last night, the council has known of its inclusion for months.)

    To reiterate, the 2.4-acre parcel was excluded for consideration in both the LWRP/GEIS, as well as the later BOA Program application - a program upon which the LWRP/GEIS stated a likely eventual reliance.

    Whether or not that is a coincidence, the council cannot claim that either its Resolution or its EAF "comport with" the LWRP/GEIS.

    The fact that we are also learning for the first time that the state's authorization of the LWRP turns on the achievement of this land transfer amounts to a kind of extortion, though probably not an illegal one (the Statute of Limitations for the waterfront program expired long ago).

  6. 3.

    B. Environmental Assessment Form (EAF Short Form)

    EAF Part II [C-1 and C-3].

    The Common Council's replies to Part II of the EAF recapitulate the multiple dishonesties of the Common Council-sponsored GEIS of 2009-2011. However, these fresh replies don't merely harken back to the previous dishonesties; they elicit our original critiques of the GEIS as pertinent to the current misstatements in the EAF.

    C-1. In the reply in section C-1 of the EAF, the public learns for the first time that the city plans to dig water mains and sewer mains to the planned marina, a new park and a giant parking lot (the latter is a requirement if the LWRP's ambition to move the state boat launch is attained).

    Permission to dig down into a known brownfield site will be conditional on the findings of a contaminants assay.

    During the GEIS process, in a public dialogue about potential contaminants at the old industrial site, the same city attorney who is a signatory to the current EAF made a claim that such a survey had already been conducted:

    "Our understanding is, and they're saying they've done feasibility studies, the first phase or second phase done, and there's nothing there [i.e. contaminants] that they're aware of - on the seven acres at the waterfront" (Cheryl Roberts, July 2010).

    In September 2012, more than two years after she made the preceding statement, the same individual admitted before the Common Council that no such study was ever made (and again, long after the Statute of Limitations had expired for the waterfront program).

    Therefore the statement made in EAF C-1 - that "the action will not adversely impact [surface or groundwater quality]" - was committed in ignorance, or worse.

    C-3. This is the section of the EAF which resurrects the public's "newly discovered information" submissions of the 2010-2011 GEIS process, which were submitted to the Lead Agency, to the NYS DOS and to NOAA, a federal agency which oversees these issues.

    Some may recall that the Common Council decided to ignore or dismiss the public's new findings, even despite a statement by a NYS SEQRA Analyst that a Lead Agency "MUST address ALL newly discovered information" (his emphasis; pers. communication later made public).

    The council's refusal to play by the rules may have ducked a well-deserved Article 78 legal challenge, but they're negligence will now come back to haunt them. This time our case against their dereliction (or is it dishonesty?) will by necessity include accounts of the ignored previous "newly discovered information" (a SEQRA category). 

    That newly discovered information included "fish," "shellfish" and Threatened" species, each of which are specified as matters of concern for the state in C-3 of the EAF.

    Also listed as a state concern at EAF C-3 are "significant habitats." Since the finalizing of the LWRP/GEIS, the "South Bay Creek and Marsh Significant Coastal Fish and Wildlife Habitat" (SCFWH) was established by the NYS DOS, an official habitat the boundaries of which encompass the 2.4-acre parcel of the proposed land transfer.

    The council's egregious oversight concerning "significant habitats" will have to be amended on its EAF in order to be consistent with another provision of SEQRA, at §617.7 (e)(1)(iii): addressing "changes in circumstances related to the project" by assuring "that no significant adverse environmental impacts will occur."

    At present, no one is in a position to make any such assertions about either the 2.4-acre parcel within the SCFWH, or in the approximately 7-acres just outside the SCFWH. Recall that the BOA Program application did not include the 2.4 acres, but to be charitable we must also remember that the public was not invited to be a part of improving the BOA process (against elaborate state recommendations and instructions for doing so).

  7. 4.

    B. Environmental Assessment Form (cont.)

    EAF Part II [C-4 and E].

    C-4 reiterates the erroneous claim of the Resolution: "comports with [LWRP]."

    To review, because the 2.4 acre parcel was never a subject of either the LWRP or the GEIS the word "comports" is a misstatement. In our abundant generosity we shall elect to chalk this up to ignorance and/or sloppiness, though neither is inexcusable in a professional context. (At least we pay a professional rate to the attorney who advises the council, an attorney whose client is, technically-speaking, the mayor of the city.)

    Lastly there remains question "E" on the EAF, to which the Common Council checked "No":

    "Is there, or is there likely to be, controversy related to potential adverse environmental impacts?"

    But please don't make the mistake of supposing that a handful of people will be able to carry off a successful challenge to whatever it is that's really going on here. This is still a battle about the LWRP and about the mining and cement interests.

  8. And remember, no feasibility study has been done. What if there is contamination? The City will be stuck with the bill. Would Holcim be off the hook or is it a Trojan Horse for the City? It certainly sounded all along as if the piece(s) of land is of no use to them and is no gift horse.
    The City has no reason to be grateful. Thanks to Don Tillson for postponing - I hope it's not the inevitable.

  9. Unheimlich - I hope you're comments are etched in stone and presented to the Common Council. Thanks for your persistence.

  10. Thanks Jennifer! That means a lot to me, and you are welcome.

    Although we can have no idea about the quid pro quo for this Trojan Horse, the wording of the council's resolution is consistent with the LWRP: "a gift in exchange for tax credits."

    I suppose that arriving at an actual figure will be at the mayor's discretion, but we can be sure it will amount to more than the property taxes saved by the multinational corporation after subtracting 9.9 acres from their total.

  11. Jennifer, I also wanted to concur that Mr. Tillson ran a hearing which was astonishingly similar to the standards one experiences at state-level public hearings.

    That's to say that the room was relaxed, the treatment was respectful and abundantly fair, and the duration of the hearing was open-ended, lasting until any and all comments were exhausted.

    Last night's hearing felt more like a baseball game which, if you take the state's recommendations at face value, was right and proper. It was nothing like the mismanaged hearings I've experienced at the level of the Common Council over the years, where officials that are in attendance on all sides are permitted free range to interrupt with rancorous heckling under the selectively censorious eye of a reigning time-keeper.